ALJDEC decisions subject to certification as final

2016A-4319-ROC · Registrar of Contractors · 2017-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chad Calvit Morgan,

COMPLAINANT,

v.

360 Development, LLC

DBA: 360 Dev Co,

License No. KB-2.224324-D,

RESPONDENT.

No. 2016A-4319-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 3, 2017, at 8:30 a.m.

APPEARANCES: Chad Calvit Morgan (“Complainant”) was represented by Lisa I. Streu, Esq., Welsh Law Group PLC; 360 Development, LLC DBA: 360 Dev Co (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the public website of the Registrar of Contractors (“the Registrar”), on or about October 12, 2007, License No. KB-2.224324-D for dual residential and small commercial contracting was issued to Respondent. Respondent’s address of record is 20472 W. Springfield St., Buckeye, Arizona 85396-3545.

On or about October 31, 2016, Complainant filed a complaint with the Registrar against Respondent’s license based on its alleged abandonment of its contract to remodel two bathrooms at Complainant’s house at 5401 E. Kings Ave., Scottsdale, Arizona 85254. Complainant alleged that he had paid Respondent $8,000.00 of the $8,189.00 contract price and that Respondent had charged $4,950.00 to Complainant’s American Express card for vanities for the job, but that Respondent had not ordered or delivered the vanities.

The Registrar assigned the complaint to its Investigator Steve Klein to investigate. On November 1, 2016, Investigator Klein sent a letter to Complainant and to Respondent at its address of record to notify them that he had scheduled a jobsite inspection on December 1, 2016.

Respondent did not attend the jobsite inspection.

Investigator Klein noted that the job was incomplete and that Respondent had not contacted him. Investigator Klein referred the complaint to the Registrar’s Legal Department with the recommendation that it charge Respondent with abandonment.

On December 2, 2016, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1). The Registrar sent the Citation to Respondent by certified and regular mail at its address of record.

Respondent filed a written answer to the citation, denying that cause existed under the charged statute to discipline his license. Respondent alleged that the master vanity had been delivered with a scratch, that Complainant cancelled the credit card charge, and that Complainant hired someone else to install the cabinets.

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

On January 24, 2017, the Registrar issued a Notice of Hearing, setting hearing on March 3, 2017, at 8:30 a.m. The Registrar mailed the Notice of Hearing to Respondent at its address of record.

A hearing was held on March 3, 2017. Investigator Klein testified. Complainant submitted three exhibits, testified, and presented the testimony of his wife, Amy Morgan.

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

Investigator Klein testified that Respondent’s written answer did not change his opinion that Respondent had abandoned the contract.

Mrs. Morgan testified that although Respondent “hit the ground running” by performing demolition on the project, Respondent’s qualifying party, Todd Scholes, soon started making excuses for why its crews could not start construction on the project. Very little work was performed on the project by the time Complainant filed the complaint with the Registrar.

Mrs. Morgan testified her husband signed the contract on August 15, 2016. On September 5, 2016, after she was unable to find vanities that she liked elsewhere, she located vanities that she liked at Restoration Hardware. She authorized Respondent to use her American Express card to order the vanities so that she could get the benefit of the contractor’s discount. Mrs. Morgan testified that although her American Express card was charged $4,950.00, Respondent refused to provide a receipt. After the vanities did not come in, Mrs. Morgan testified she finally contacted Restoration Hardware and learned that it did not have any record of Respondent’s purported order.

Complainant testified that during the job, Respondent kept asking for more money. Mr. Scholes never informed him that the vanity was scratched and, in any event, the vanities that Complainant and Mrs. Morgan had selected were constructed with distressed wood.

Complainant testified that after December 1, 2016, he and his wife hired other contractors to complete Respondent’s work and collateral damage to drywall that Respondent’s poor work had caused.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. Respondent’s license has been disciplined four times and has been administratively suspended for non-renewal or lack of bond three times. On January 27, 2017, Respondent’s license was administratively suspended for lack of bond and remained suspended as of this date.

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CONCLUSIONS OF LAW

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.

The administratively suspended status of Respondent’s license does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’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.”

Complainant established that Respondent abandoned performance of its contract with Complainant without legal excuse. Therefore, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(1).

The administratively suspended status of Respondent’s license and its failure to appear at the hearing show that, at this time, it cannot be regulated.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent 360 Development, LLC DBA: 360 Dev Co’s License No. KB-2.224324-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, March 3, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors