ALJDEC decisions subject to certification as final

2016A-4784-CHC-ROC · Registrar of Contractors · 2017-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Shuster,

COMPLAINANT,

v.

Back To Basics Corp.

DBA: Chris Mellon and Company,

License No: 197061

RESPONDENT.

No. 2016A-4784-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 14, 2017

APPEARANCES: Complainant Barbara Shuster appeared and was represented by Richard Chambliss. Respondent Back To Basics Corp. doing business as Chris Mellon and Company did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Back To Basics Corp. doing business as Chris Mellon and Company (Respondent) is the holder of License No. 197061 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 5, 2016, Barbara Shuster (Complainant) signed a contract with Respondent to perform an extensive remodeling project at her home for a total contract price of $167,638.74.

On or about November 30, 2016, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Ted Stodder. After a jobsite inspection, Investigator Stodder issued a written directive to Respondent that provided 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/specs/contract

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make any attempt to contact Complainant. After the deadline in the directive expired, Investigator Stoddard was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).

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

The Registrar issued a Notice of Hearing, setting a hearing on 1:00 p.m. on March 14, 2017. 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.”

On March 8, 2017, counsel for Respondent submitted a Notice of Filing Bankruptcy for Chris and Carrie Mellon.

A hearing was held on March 14, 2017. Complainant testified on her own behalf and submitted five exhibits.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Stoddard testified that the instant complaint was the sixth complaint against Respondent in the previous six months. Investigator Stoddard stated that Respondent was not present during the jobsite inspection. During the inspection, Investigator Stoddard observed that demolition had been started on the project and most of the new flooring had been laid, but a significant amount of work remained to be done. Investigator Stoddard observed that Complainant had paid Respondent $146,638.00 toward the total contract price, but that Respondent had not performed work comparable to that payment on the contract.

Complainant testified that much of the work under the contract had not been performed including kitchen cabinets, countertops, and appliances; bathroom cabinets and mirrors; and laundry room cabinets. Complainant testified that Respondent last worked on the project in September 2016.

Administrative notice is taken of Respondent’s prior License record on March 29, 2017. Such prior License record reflects that Respondent’s License No. 197061 was first issued on June 12, 2004. Respondent’s license was suspended for lack of bon on December 1, 2016, and suspended until compliance on December 21, 2016; January 17, 2017; and January 19, 2017. Such prior License record also reflects that there were two complaints open, three complaints resolved, settled or withdrawn complaints, and two complaints resulting in discipline 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 copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were 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 suspended 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).

While it is noted that Chris and Carrie Mellon, Officers of Respondent, filed for bankruptcy personally, nothing was submitted to the Office of Administrative Hearings to indicate that Respondent had filed for bankruptcy such that a stay of these proceedings was appropriate.

The evidence established that Respondent failed to complete the work outlined in the contract without legal justification. Therefore, Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent did not attempt to comply with written directive issued by the Registrar. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of 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’s License No. 197061.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, March 29, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors