ALJDEC decisions subject to certification as final

2016A-2652-ROC · Registrar of Contractors · 2016-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Antonio Cadena,

COMPLAINANT,

v.

Home Lift Now LLC ,

License No. CR61.302446-D,

RESPONDENT.

No. 2016A-2652-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 12, 2016, at 8:00 a.m.

APPEARANCES: Antonio Cadena (“Complainant”) appeared on his own behalf; Home Lift Now LLC (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about December 26, 2015, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61.302446-D to Respondent. Respondent’s address of record is 5320 E. Paradise Lane, Scottsdale, Arizona 85254-1132.

Complainant is the owner/occupant of a residence located at 314 N. 17th Drive, Phoenix, Arizona 85007.

On June 6, 2016, the Registrar issued an order summarily suspending Respondent’s license. That Order provided as follows:

Pursuant to A.R.S. § 41-1092.11(B), and with good cause appearing, IT IS ORDERED that Respondent's License No. CR61.302446-D shall be summarily suspended on the date of this

Order. The Registrar finds that the public health, safety, and welfare imperatively require emergency action on the part of the Registrar. Respondent knowingly perpetrated acts in violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(2), and A.R.S. § 32-1154(A)(6) which violations include, without limitation, abandoning homeowner contracts after payment, failing to obtain permits and inspections, failure to pay subcontractors and materialmen which damaged the homeowners and other acts that demonstrate that the licensee is an ongoing danger to the public health, safety, and welfare. At the time of this Order, the Respondent has eleven complaints which have been filed against it or its Qualifying Party with the most recent complaint filed on May 27, 2016.

On the same date, the Registrar on its own motion issued a Citation and Complaint against Respondent’s license, charging thirty two (32) violations of various statutes as cause to discipline Respondent’s license.

Administrative notice is taken of the Registrar’s public website pursuant to A.A.C. R4-9-117. According to the website, on this date, Respondent’s license was summarily suspended between June 6, 2016, and September 5, 2016, and was revoked on July 12, 2016, July 29, 2016, August 3, 2016, August 12, 2016, August 12, 2016, August 15, 2016 (twice), September 6, 2016, September 8, 2016, September 19, 2016, September 20, 2016, September 27, 2016, September 28, 2016, and October 4, 2016.

On July 25, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had abandoned its contract to remodel Complainant’s home after Complainant had paid Respondent $15,105.00 and that Respondent had substantially demolished portions of Complainant’s home. According to the complaint, the date of the contract was April 4, 2016, and Respondent started work on June 21, 2016, and stopped work on June 29, 2016.

On the same date that the complaint was filed, the Registrar assigned it to Investigator Ted Stodder to investigate as an emergency. Investigator Stodder testified that he went to the jobsite, took photographs, and verified that Respondent had demolished and removed sheetrock, flooring, subflooring, and walls, and that the home was still in demolished state of disrepair. Investigator Stodder sent Respondent a letter notifying it of the complaint and forwarded it to the Registrar’s Legal Department.

On August 1, 2016, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke its license under A.R.S. §§ 32-1154(A)(1), 32-1154(A)(17), and 32-1154(A)(3), namely A.A.C. R4-9-108.

Respondent filed a written answer to the Citation, which also responded to the Citations that the Registrar had issued in seven other cases. The Registrar referred Complainant’s complaint to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

On August 23, 2016, the Registrar issued a Notice of Hearing, setting this matter for a hearing before OAH on October 12, 2016, at 8:00 a.m. The Registrar mailed the Notice of Hearing to Respondent at its address of record.

A hearing was held on October 12, 2016. Complainant appeared and testified. Investigator Stodder also testified. The allegations in the complaint were established. Complainant stated that Respondent has not performed any more work on the project.

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed more than fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

Complainant credibly established that Respondent damaged beyond repair the original 1906 wood floor in the house, which Complainant wanted to preserve, when it removed a laminate and a vinyl floor that had been laid over the floor, that when it removed a wall in the kitchen, it exposed electrical wiring, and that it removed a weight-bearing wall from a back room without making any provision to bear the load. Complainant testified that he paid $11,700.00 to other contractors to fix what Respondent damaged and that he has not been able to afford to begin the actual remodeling that he hired Respondent to perform.

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.

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.

Complainant bears the burden of proof to establish cause to suspend, revoke, or otherwise discipline Respondent’s contractor’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established by a preponderance of the evidence cause to revoke Respondent’s license under A.R.S. §§ 32-1154(A)(1), 32-1154(A)(17), and 32-1154(A)(3), namely A.A.C. R4-9-108.

/ / / /

/ / / /

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order, Respondent’s Home Lift Now LLC’s License No. CR61.302446-D shall be revoked.

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

Done this day, October 12, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors