ALJDEC decisions subject to certification as final

2016A-3760-ROC · Registrar of Contractors · 2017-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maricopa Steel LLC,

COMPLAINANT,

v.

Tycor Construction LLC, License No: 281873,

RESPONDENT.

No. 2016A-3760-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2017

APPEARANCES: Maricopa Steele, LLC (Complainant) was represented by its Operations Manager, Ryan Scott Sanders, and its owner, Bert Merriman. Tycor Construction LLC (Respondent) was represented by its owners, Gregory Keenan and Ty Lemons.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) issued License No. 281873 to Respondent,

The Registrar received a Complaint against Respondent from Complainant alleging that Respondent failed to perform a contract the parties had entered into on August 3, 2016 in which Respondent agreed to prepare a modular office Complainant had purchased from a third party for transport from Chandler, Arizona to Apache Junction, Arizona, transport the modular office and then set up the modular office for use in its new location for the sum of $8,579.10. The contract listed an estimated completion date of August 31, 2016. See Exhibit A.

Complainant paid Respondent a $4,289.55 deposit which Respondent cashed on August 8, 2016.

Emails between the parties reflect that Respondent assured Complainant that it could complete the project within two to three weeks. See Exhibit B.

Complainant became distressed that the modular office had not even been moved by August 31, 2016. Ryan Sanders and Bert Merriman both testified that they made numerous attempts to contact Respondent and inquire as to when the move would occur and the project completed to no avail.

By September 15, 2016 when the move had still not occurred Complainant contended that in a telephone call Keenan informed Sanders and Merriman that he would not be performing any more work on the project. Email correspondence from that date suggests that Chris Hotchkiss of USA Transport, the company that Respondent engaged to transport the modular office, requested serial numbers of the modular office, which Respondent was able to provide through Ty Lemons.

Sanders testified that Hotchkiss informed him that USA Transport would not perform the move because Respondent had not paid it for a prior job. Complainant then made arrangements to move the modular office directly with USA Transport and provided it the documents needed to do so.

Greg Keenan vehemently disputed that Respondent was unwilling to perform the contract. He indicated that Respondent had repeatedly asked Complainant to provide the bill of sale and tax lien clearance from the seller of the modular office because that information was a legal requirement for transport. Keenan did not provide any documentary evidence that he had requested that Complainant give Respondent those documents, despite being afforded many opportunities to do so by the Tribunal. At one point, Keenan said he found an email asking Complainant for the documents on his cell phone, but his phone died and Keenan refused to plug it in or charge it.

The Tribunal permitted the parties to attempt to reach Hotchkiss to clarify matters. Keenan telephoned Hotchkiss but was only able to reach his wife whom he proceeded to question off the record about the legality of the move USA Transport performed for Complainant.

The Tribunal summarized this conversation for the record and then Complainant called USA Transport again to leave the hearing room telephone number for Hotchkiss to call if he was available. Thereafter, Keenan refused to wait for Hotchkiss’ call, saying it was not necessary and exited the hearing room.

Ty Lemons testified that the contract with Complainant was Keenan’s deal but that he was aware that by September 2016 the parties were not getting along. He understood that Keenan was waiting for Complainant to provide certain documents when Respondent was told not to come back and to cease work on the project.

Sanders noted that once Complainant contracted directly with USA Transport, it only took four days for the move to occur. He estimated that Respondent had performed $700.00 worth of work under the parties’ contract.

After receiving Complainant’s complaint, the Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1) (abandonment).

Respondent filed a timely written answer to the Citation denying abandonment of the project and asserting that Complainant had terminated the contract with Respondent. Respondent further stated that it had spent the whole deposit amount it received from Complainant preparing the modular office for transport.

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

At hearing, Sanders, Merriman, Keenan and Lemons testified consistently with the facts detailed above.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. Complainant bears the burden of proof to establish Respondent’s statutory violation 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).

5. Complainant established 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). The evidence showed that Respondent failed to move the modular office by the estimated completion date and for weeks thereafter. Respondent failed to produce documentary evidence that it requested documents for the move that Complainant refused to provide. Sanders and Merriman credibly testified that had they been asked to provide any documents for the move, they would have done so. The evidence reflected that when USA Transport requested documents needed for the move, Complainant timely provided them and the move proceeded without delay.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent‘s License No 281873 for a period of three (3) days.

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 20, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors