ALJDEC decisions subject to certification as final
2016A-2834-ROC · Registrar of Contractors · 2016-11-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kimberlee E. Workman,
COMPLAINANT,
v.
Home Lift Now LLC ,
License No: 302446
RESPONDENT.
No. 2016A-2834-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 24, 2016
APPEARANCES: Complainant Kimberlee E. Workman appeared on her own behalf. Respondent did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACTMay 19, 2016
Home Lift Now LLC (Respondent) is the holder of License No. 302446 issued by the Arizona Registrar of Contractors (Registrar).
On or about May 19, 2016, Kimberlee E. Workman (Complainant) entered into a contract with Respondent for, among other things, the building of a closet, installation of a sliding glass door, and removing a built in entertainment center and installation of a window in its place.
On or about August 3, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor and incomplete work with respect to the project.
The Registrar assigned the complaint to Investigator Matt Gunstra. Investigator Gunstra performed a jobsite inspection. Knowing that Respondent’s license had been revoked, Investigator Gunstra did not issue a written directive to Respondent. Investigator Gunstra referred the matter to the legal department.
The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2); and A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 24, 2016. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on October 24, 2016.
Investigator Gunstra testified that his review of the complaint and the jobsite inspection indicated the following:
Respondent did not obtain a permit for the project and one was required.
The closet doors were installed at different heights.
The closet door jambs were not plumb.
The glass sliding door installed was supposed to be larger than the one installed.
The glass sliding door was not installed properly.
Respondent concealed an electrical junction box in the ceiling in the kitchen area that is not to code.
Respondent last worked on the project on May 31, 2016, 6 days prior to Respondent’s license being suspended and 42 days prior to it being revoked.
Respondent caused damage to the kitchen laminate floor in several areas.
An electrical outlet installed by Respondent was not working properly.
Insulation installed did not completely fill each stud cavity.
Complainant testified that she made it clear to Respondent that the project needed to be completed quickly because she had just bought the home and was moving in with elderly family members with medical needs. Respondent advised the job would take only seven days or two weeks at the most. Complainant acknowledged she had misplaced the contract during the move.
Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 25 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Administrative notice is taken of Respondent’s prior License record on November 14, 2016. Such prior License record reflects that Respondent’s License No. 302446 was first issued on December 26, 2015, was suspended on June 6, 2016, and first revoked on July 12, 2016. Such prior License record also reflects that Respondent’s license has been revoked 15 times for discipline and failure to pay a civil penalty and that there are currently four open complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
Respondent’s administratively revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).
The evidence established that Respondent abandoned the project without legal justification in violation of A.R.S. § 32-1154(A)(1).
The evidence established that Respondent failed to obtain permits for the project prior to beginning work in violation of A.R.S. § 32-1154(A)(2).
The evidence established that Respondent’s work on the project was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not perform the work on the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 302446.
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 40 days from the date of that certification.
Done this day, November 14, 2016.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors