ALJDEC decisions subject to certification as final

2016A-4764-CHC-ROC · Registrar of Contractors · 2017-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arnold Hershbain,

COMPLAINANT,

v.

Back To Basics Corp dba,

Chris Mellon and Company ,

License No: 197061

RESPONDENT.

No. 2016A-4764-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 20, 2017

APPEARANCES: William H. Breier, Esq. appeared on behalf of Complainant Arnold Hershbain. No one appeared on behalf of Back To Basics Corp dba,

Chris Mellon and Company.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On February 2, 2016, Complainant Arnold Hershbain, (hereinafter “Mr. Hershbain”), and Back To Basics Corp dba, Chris Mellon and Company, (hereinafter “Back to Basics”), entered into a kitchen design agreement for $10,500.

2. On February 2, 2016, Mr. Hershbain paid Chris Mellon for the kitchen design.

3. Chris Mellon is the qualifying party for Back to Basics. Carrie Mellon is an officer of Back to Basics.

4. On March 22, 2016, Mr. Hershbain and Back to Basics entered into a kitchen remodeling contract for $61,072.26. Under the contract, Mr. Hershbain was required to pay $35,246.21 as a deposit due upon the agreement of the contract. Mr. Hershbain was required to pay $5,576.34 upon the start of demolition, $5,576.34 upon the start of the cabinetry, $5,576.34 upon the installation of the countertops and $2,788.17 due upon usable condition.

5. In June of 2016, Back to Basics demolished Mr. Hershbain’s kitchen.

6. As of June 13, 2016, Mr. Hershbain had paid over $40,000 for the remodeling of his kitchen, not including the $10,500 kitchen design payment for the design.

7. After Back to Basics demolished Mr. Hershbain’s kitchen, it performed no on Mr. Hershbain’s home.

8. On November 15, 2016, Mr. Hershbain informed Carrie Mellon that Chris Mellon was terminated after Mr. Hershbain failed to receive reassurances that Back to Basics would complete the kitchen remodeling project.

9. On November 25, 2016, the Registrar received a complaint from Mr. Hershbain alleging that Back to Basics abandoned the kitchen remodeling contract.

10. On December 7, 2016, Respondent mailed a letter to Mr. Hershbain stating that it would not do any further work on Mr. Hershbain’s home.

11. On December 13, 2017, Mr. Hershbain’s attorney mailed a letter to Back to Basics which stated that Back to Basics was terminated from doing any further work on the project.

12. On December 20, 2016, Registrar Investigator Ted Stodder conducted an onsite job inspection.

13. On December 21, 2016, Investigator Stodder issued a directive to Back to Basics. The December 21, 2016 directive provides in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 6, 2017.

You are hereby directed to remedy the following violations by the appropriate means:

Complete project per plans/spec/scontract

14. After the directive was issued, Back to Basics made no attempt to contact Complainant to complete the project.

15. On January 10, 2017, the Registrar issued citation against Back to Basics alleging that it abandoned the contract in violation of A.R.S. 32-1154(A)(1) and failed to comply with the Directive in violation of A.R.S. 32-1154(A)(22).

16. On January 25, 2017, the Registrar received Back to Basic’s answer to the citation.

17. Back to Basics filed an appeal to the citation and the matter was sent to the Office of Administrative Hearings.

18. On February 3, 2017, the Registrar of Contractors issued a notice of hearing regarding the charges made in the Citation and Complaint for March 20, 2017.

19. At hearing, Mr. Hershbain testified that despite paying Back to Basics to remodel its kitchen, Back to Basics never completed the work. Back to Basics demolished his kitchen in June 2016 and never performed any additional work.

20. There was no evidence presented at the hearing that Back to Basics made any attempt to contact Complainant to complete the project after the directive was issued.

21. No one appeared at the hearing on behalf of Back to Basics. Back to Basics 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 thirty minutes to allow Back to Basics additional travel time, Back to Basics did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Back to Basics did not present any evidence to controvert the evidence that the Complainant presented.

22. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 10, 2017, Respondent’s license was suspended effective December 1, 2016 for lack of bond. Such prior License record also reflects that are two open complaints against Respondent’s license, two prior complaints that resulted in discipline, and three prior complaints that were resolved, settled, or withdrawn.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(1).

3. A.R.S. § 32-1154(A)(1) provides grounds for suspension or revocation of a contractor’s license for abandoning a project he or she has undertaken.

4. In this case, the Complainant established that Respondent violated A.R.S. § 32-1154(A)(1) when it agreed to perform a contract with Complainant and failed to complete the work. This Tribunal concludes that the violation of A.R.S. § 1154(A)(1), in combination with Respondent’s license history, merits the revocation of Respondent’s license.

5. Prior to the hearing, Respondent submitted evidence that Chris Mellon and Carrie Mellon had filed for bankruptcy as individuals under Chapter 7 of the United States Bankruptcy Code. However, there was no documentation or allegation that a bankruptcy petition had been filed on behalf of Respondent.

6. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Back To Basics Corp dba,Chris Mellon and Company’s license No. 197061.

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, April 10, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors