ALJDEC decisions subject to certification as final

2016A-2264-ROC · Registrar of Contractors · 2016-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott C. Somers,

COMPLAINANT,

v.

Home Lift Now LLC, License No: 302446

RESPONDENT.

No. 2016A-2264-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 28, 2016

APPEARANCES: Scott Christopher Somers (Complainant) appeared on his own behalf. Home Lift Now LLC (Respondent) did not appear.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 2525 South Essex, Mesa, Arizona 85209.

Respondent holds Arizona Contractor’s License No. 302446, which is was summarily suspended on June 6, 2016 and revoked on September 4, 2016. In total, Respondent’s license has been revoked by the Register 9 times.

On June 28, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had contracted to perform a total bathroom remodel for him on April 11, 2016, but at his request had delayed the start of the project until May 2016. The Complaint alleged that work began but was abandoned after Respondent failed to pay its subcontractors and had its license suspended. The Complaint also raised concerns that Respondent had failed to obtain a requisite plumbing permit, performed work while its license was suspended, and employed unlicensed subcontractors.

The Registrar assigned investigator Matt Gunstra to investigate the complaint. The file reflects that he arranged to perform an inspection on July 1, 2016, and notified Complainant and Respondent of the time and place of the inspection. Respondent did not attend that inspection. Gunstra’s jobsite inspection notes reflect that the job was not complete and that Respondent appeared to have abandoned the project. Gunstra’s notes also document that a subcontractor of Respondent performed plumbing work, including moving a drain that appeared to require a permit that Respondent had not obtained. The notes also show that Gunstra received evidence that Bill Hertzog of Bayridge Plumbing worked on the plumbing involved in the job, but that a search of the Registrar’s website demonstrated no that neither Hertzog nor Bayridge had a license from the Registrar. Finally, the notes document that Gunstra was told that Respondent last performed work on the project on June 23, 2016, more than two weeks after its license was summarily suspended by the Registrar.

On July 1, 2016, Gunstra sent Respondent a Directive from the Registrar. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 7/15/16.

You are hereby directed to remedy the following violations by the appropriate means:

Project to be completed in a timely manner as dictated by the timeframe given under this Directive

Respondent shall comply with all inspections and directives issued by the city or local authority

Border tile in shower has tiles with excessive lippage that are not set evenly

NOTE: Respondent MAY continue projects under contract and perform warranty repairs as directed by the Registrar of Contractors while under a summary suspension

NOTE: All subcontractors are required to be properly licensed under their specified scope of work

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant testified that Respondent never contacted him regarding the project after July 1, 2016 and did not attempt to comply with the Directive.

At some point, Gunstra forwarded the matter to the Registrar’s legal department for review.

On July 19, 2016, the Registrar issued Respondent a Citation. That Citation contained six charges. Charge 1 asserted “[a] violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”) Charge 2 referenced “[a] violation of A.R.S. § 32-1154(A)(2) (“Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”) Charge 3 alleged "[a] violation of A.R.S. § 32-1154(A)(9) (“Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter.”) Charge 4 specified “[a] violation of A.R.S. § 32-1154(A)(12) (“Failure in any material respect to comply with this chapter,”) in particular A.R.S. § 32-1124(B), which requires the ROC license number to be displayed on all contracts and advertising and states that all licenses are nontransferable as well as A.R.S. § 32-1158(B) that lists certain required elements of a contract. Charge 5 alleged “[a] violation of A.R.S. § 32-1154(A)(17) (“Contracting or attempting to contract or submitting a bid while a license is under suspension or while the license is on an inactive status.”) Charge 6 specified a violation of A.R.S. § 32-1154(A)(22), in particular, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

On, July 26, 2016, Brandon Lederer filed an answer to the Citation on Respondent’s behalf which stated in pertinent part:

I am writing a formal letter to ROC regarding all of the below complaints and that may come after.

Directly due to the ROC suspending and revoking my license, this destroyed my business and therefore forced me to close my doors. We have no assets or license to perform anymore work on any of these prior jobs. Otherwise, I would be happy to attend any and all job site inspections and hearing's (sic) pertaining to these matters including finishing work. We unfortunately and regretfully are no longer in business.

These are the following active complaints that this pertains too (sic);

Complaint # 2016-2264 Somers

Complaint # 2016-2226 Lubben

Case # 2016-2093 Safi

Complaint # 2016-2295 Kutless Painting (did poor quality work and payment was not justified or deserved)

Complaint # 2016-2215 Cabinets For Less (delivered poor quality products that needed to be replaced)

Complaint # 2016-2571 Dunn Edwards

Hearing in this matter was held on September 28, 2016. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed twelve minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Complainant offered the only testimony in this matter. He said that when he entered the contract with Respondent in April 2016, Respondent was properly licensed and he was never informed of a change in Respondent’s status. At Complainant’s request, the start date was pushed back. He recalled worked started slowly and that tile installers kept leaving the job, citing nonpayment by Respondent. Complainant noted that the third tile installer told him that Respondent’s license was suspended. Complainant testified that he attempted to contact Respondent about finishing the job but never received a response. Complainant noted that he contacted the City of Mesa and was told that a plumbing permit was needed for the work Respondent had agreed to do. He recalled giving Gunstra a copy of Bill Hertzog’s business card and learning that he had no license. Complainant said Respondent’s license number was on the contract he signed but that the contract did not inform him of his right to file a complaint with the Registrar.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

The undisputed evidence in this matter established that Respondent violated A.R.S. § 32-1154(A)(1) and abandoned its contract with Complainant. Respondent left the job uncompleted and failed to make arrangements with a properly licensed contractor to complete the work.

The undisputed evidence also established Respondent violated A.R.S. § 32-1154(A)(2) by failing to secure a permit for the plumbing work done on Complainant’s project.

Ample evidence supports that Respondent violated A.R.S. §32-1154(A)(9) by offering work to Bill Hertzog of Bayridge Builders and permitting him to work on Complainant’s project. The Registrar’s search of its records revealed no license for either Bill Hertzog or Bayridge Builders.

A review of Complainant’s contract with Respondent shows that Respondent violated A.R.S. § 32-1154(A)(12) by failing to include required elements in its contract with Complainant pursuant to A.R.S. § 32-1158(B). The Tribunal does not find that Respondent violated A.R.S. § 32-1154(A)(12) by failing to include and display its ROC number on the contract as the ROC number is in fact found in the box under Respondent’s name.

The undisputed evidence established that Respondent violated A.R.S. § 32-1154(A)(17) by continuing to contract and work for more than two weeks after its license was summarily suspended.

Finally, Respondent did not make any attempt to comply with the Directive by having a properly licensed contractor complete the job. Respondent’s actions constitute a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Home Lift Now LLC’s License No. 302446.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, September 30, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors