ALJDEC decisions subject to certification as final

2017A-123-ROC · Registrar of Contractors · 2017-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dennis John Lafleur,

COMPLAINANT,

v.

A Plus Shade Screens, LLC,, License No: 208300,

RESPONDENT.

No. 2017A-123-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 22, 2017

APPEARANCES: Dennis John Lafleur (Complainant) appeared on his own behalf. No one appeared on behalf of A Plus Shade Screens, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) first issued License No. 208300 to Respondent on June 15, 2005. This license was class B for General Residential Contractor. That license was suspended for one day for a finite suspension on February 7, 2017 and had also been suspended for lack on bond during the period July 18 through September 7, 2010.

The Registrar received a Complaint against Respondent from Complainant alleging that on November 8, 2016 the parties had signed a proposal whereby Respondent would supply and install privacy shades on both sides of Complainant’s carport for the sum of $2,800.00 and would begin work in 2.5 to 3 weeks, but that Respondent ultimately failed to do any work on the project.

Complainant paid Respondent a $1,400 .00 deposit and waited for work to commence. Evidence in the file shows that Respondent cashed Complainant’s check on November 8, 2016.

When Complainant heard nothing from Respondent, he telephoned Respondent on December 1, 2016 and learned that Rick Atkinson would perform the work on December 5, 2016. When Atkinson did not show up, Complainant telephoned Respondent and was told that Atkinson had personal business to attend to that day and could not come as planned.

After numerous attempts to contact Respondent were unsuccessful, Complainant filed the Complaint referenced above on January 6, 2017.

The Registrar assigned investigator Michael Crow investigate the Complaint. Crow testified that he reviewed the Complaint and determined that it alleged a “straight abandonment” in which Complainant had paid money, but Respondent had done no work. As such, pursuant to the Registrar’s policy, Crow did not schedule a jobsite inspection and simply forwarded the file to the Registrar’s legal department for review.

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

On February 1, 2017, Atkinson filed a timely written answer to the Citation on behalf of Respondent indicating that he felt wrongfully accused and seeking a hearing date.

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

Respondent 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 20 minutes to allow Respondent additional travel time, it did not appear, through an attorney or representative, and did not contact the OAH to request that the start of the hearing be further delayed. Attempts were made to reach Respondent at the telephone numbers listed on its business card, but both had been disconnected. Consequently, Respondent did not present any evidence.

At hearing, Complainant and Crow testified consistently with the facts detailed above. Complainant also submitted evidence that Respondent still had not performed the work in question and that Respondent was no longer operating its business at the address of record Respondent had on file with the Registrar, 401 West Main Avenue, Casa Grande, Arizona 85122.

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).

3. The Notice of Hearing that the Registrar mailed to Respondent at the address its address of was reasonable and it is deemed to have received notice of the hearing.

4. 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 took a $1,400.00 deposit from Complainant and then never returned to do any work.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent License No.208300 for five (5) 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, March 24, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors