ALJDEC decisions subject to certification as final

2016A-3489-ROC · Registrar of Contractors · 2017-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Susan McKelvey,

COMPLAINANT,

v.

A B C Building Corp,

License No: 268333

RESPONDENT.

No. 2016A-3489-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 23, 2016

APPEARANCES: Susan McKelvey appeared on behalf of herself. Rolf Michola Von Furstenrecht appeared on behalf of A B C Building Corp.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (hereinafter “Registrar”) issued License No. 268333 to A B C Building Corp (hereinafter “Respondent” or “A B C”).

In July of 2016, Frank Linnartz (hereinafter “Linnartz”) entered into a verbal contract with Complainant to remodel Complainant’s home located in Phoenix, Arizona. The total contract price was $25,000.00.

Linnartz began work on the home in July of 2016. Linnartz stopped working on the home in August of 2016.

On or about September 12, 2016, Complainant filed a complaint with the Registrar against Linnartz alleging poor workmanship and abandonment.

Complainant listed ROC #268333 on the complaint form. However, Complainant did not list A B C on the complaint form.

The Registrar assigned investigator Steve Klein (hereinafter “Klein”) to investigate the complaint. Klein concluded that the job was incomplete. Therefore, he did not address the workmanship allegations. Klein found that the job was incomplete. Klein forwarded the matter to the Registrar’s legal department for review.

On October 5, 2016, The Registrar issued a Citation and Complaint against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

Respondent filed a timely written answer to the Citation and Complaint, claiming that he did not enter into a contract with Complainant and did not know Complainant.

The Registrar referred the matter to the Office of Administrative Hearings (hereinafter “OAH”), an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 10:00 a.m. on December 23, 2016, at the OAH.

At hearing, Linnartz testified that he does not work for A B C. He testified that he did not work for A B C at the time that he entered into the contract.

Complainant testified that Linnartz gave her a business card with his name and A B C’s name listed. However, Complainant testified that she entered into a contract with Linnartz and not A B C. She testified that Linnartz did not complete the home remodeling project. Complainant also testified that Linnartz wrote A B C’s ROC number on the business card and wrote the name “Leland”, the name of a painter that he would work with on the job.

Linnartz testified that he gave the business card to Complainant but did not write the ROC number on the card. Linnartz testified that the address listed on the business card is his personal address. He also testified that one of the two phone numbers listed on the card is his personal cell phone number.

Rolf Michola Von Furstenrecht (hereinafter “Von Furstenrecht”), the qualifying party of A B C, testified that Linnartz has not worked for A B C since 2010. Von Furstenrecht testified that he fired Linnartz in 2010. Von Furstenrecht testified that he does not allow any work to done with A B C without a written contract.

Von Furstenrecht testified that the address listed on the business card offered into evidence was not A B C’s address. However, Von Furstenrecht testified that it was associated with A B C in the past. He also testified that the second phone number listed on the card belonged to A B C.

Complainant also offered into evidence an October 23, 2016 printout from the Registrar’s website of the License Record of A B C Building Corp. The address listed on the License Record is not the same address that was listed on the business card. The License Record also states before listing the Qualifying Party and Personnel, “The Qualifying Party listed below is associated with this license. All other persons named, if any, are associated with the company. They are not all necessarily associated with this license.”

The License Record lists Rolf Von Furstenrecht as the Qualifying Party/Officer and Linnartz as an Officer. The October 23, 2016 printout also contains the following disclaimer, “The data supplied below is based on your specific request (s) and is correct to the best of our knowledge as of the date and time it was extracted from out data files. The information is provided without personal research or analysis. The data is subject to change on a daily basis. You may obtain additional public records related to any licensee, including dismissed complaints and nondisciplinary actions and orders, by contacting the ROC directly.”

Von Furstenrecht testified that the October 23, 2016 printout of Respondent’s License Record incorrectly lists Linnartz as an Officer of A B C. Von Furstenrecht testified that after the citation was issued, he went to the Registrar’s office to find out why Linnartz’s name was attached to his license. Von Furstenrecht testified that receptionist at the office told her that Linnartz’s name is no longer on the license. Von Furstenrecht testified the Registrar gave him a Contract List Owner document that shows that Linnartz was terminated in 2010. See Respondent’s Exhibit 1.

Von Furstenrecht’s testimony is found to be credible.

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 evidence at hearing established that Complainant did not enter into a contract with Respondent. Complainant did not establish by a preponderance of the evidence that Linnartz worked for A B C at the time that the verbal contract was executed. Complainant did not prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Susan McKelvey.

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, January 12, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors