ALJDEC decisions subject to certification as final
2017A-1533-CHC-ROC · Registrar of Contractors · 2017-07-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Randie Jones and Gloria Orona,
COMPLAINANT,
v.
Granite Tech LLC,
License No: 262243
RESPONDENT.
No. 2017A-1533-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 21, 2017
APPEARANCES: Complainants Randie Jones and Gloria Orona appeared on behalf of themselves. No one appeared on behalf of Granite Tech, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
On May 4, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on June 21, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
No representative for Respondent Granite Tech LLC, (hereinafter “Granite Tech”), appeared at the scheduled time and the matter was convened in its absence at about 1:20 p.m.
Granite Tech holds license number 262243 issued by the Registrar.
Gary Wayne Jensen is Granite Tech’s qualifying party.
On or about February 16, 2017, Granite Tech and Complainants Randy Jones and Gloria Orona entered into a home remodeling agreement wherein Granite Tech would install granite in Complainants’ home. Granite Tech provided Complainants with an invoice for a total amount of $2,300. The required down payment was $1,150.
Granite Tech did not provide Complainants with a written contract advising them of their right to file a complaint with the Registrar against Granite Tech for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), and did not provide the Registrar’s telephone number or website address.
On February 22, 2017, Complainants paid the $1,150 down payment to Granite Tech.
Granite Tech informed Complainants that it would install the granite in 2-3 weeks.
Despite several attempts by Complainant to contact Granite Tech after the deposit was paid, Complainants did not receive any contact from Granite Tech for approximately two weeks.
On March 8, 2017, at approximately 7:53 a.m., Julie Jensen, the wife of Gary Wayne Jensen, sent Complainant Randy Jones an electronic mail message, (hereinafter “e-mail), regarding the remodeling project. The March 8, 2017 e-mail provides, in relevant part, as follows:
Good morning,
I am reaching out to make you all aware we are behind due to we had another granite shop take half out employees last week, for more money then they are worth. Gary has been working 7 days a week to try and stay on top of things since November. We are trying to hire more help but no experience takes time away. I am so sorry and would hope you would work with us. At this time I honestly don’t know what to say but that we are doing the best we can. Thank you, Julie
Julie Jensen
Granite Tech L.L.C.
On March 8, 2017, at approximately 4:51 p.m., Complainants sent a text message to Granite Tech. The text message provides, in relevant part, as follows:
I have called you 3 times & no call back. I also sent you am email. I understand you have lost some of your staff but I would really appreciate a call back. Need a status of where out project is? If you can’t’ do it by 03/21 then we would like our dep osit back. Please call me at 602 399 0513 or at least respond to my text or email.
12. Granite Tech did not provide Complainants with any information regarding
the status of the project or whether they would start work by March 21st.
13. On March 9, 2017, Complainant Gloria Orona informed Granite Tech that
it was cancelling the home remodeling project. Ms. Orona also requested a return of the $1,150 deposit.
14. Granite Tech did not return Complainant’s $1,150 deposit.
15. Granite Tech did perform any work on Complainant’s home.
16. On March 20, 2017, the Registrar received a complaint filed by Complainants against Granite Tech alleging that Granite Tech performed no work in connection with a residential remodeling contract. Complainants also alleged they paid Granite Tech a $1,150 deposit.
17. On May 3, 2017, the Registrar received a response from Granite Tech.
18. On April 19, 2017, the Registrar issued a Citation alleging that Granite Tech may have violated Ariz. Rev. Stat. section 32-1154(A)(1), (A)(12) and Ariz. Rev. Stat. section 32-1158(B).
19. The Registrar referred the matter to the Office of Administrative Hearings,
an independent agency, to schedule an evidentiary hearing.
20. A hearing was held on June 21, 2017.
21. No one appeared on behalf of Granite Tech at the hearing on June 21, 2017. No one filed a request to appear telephonically on behalf of Granite Tech. Although the hearing did not start until approximately 1:20 p.m. no one appeared on behalf of Granite Tech through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Granite Tech did not present any evidence to defend its license.
22. At hearing, Complainant Randie Jones testified that Granite Tech did not
return any of Complainants’ phone calls or texts for almost two weeks after the deposit was paid. Mr. Jones testified that he and Ms. Orona attempted to resolve the matter with Granite Tech on March 9, 2017, but Gary Wayne Jensen was aggressive and confrontational. Mr. Jones testified that Gary Wayne Jensen threatened to physically attack him.
23. Administrative notice is taken of Respondent’s prior License record as
reflected on the Registrar’s public website on July 11, 2017. Such prior License record reflects that Respondent’s License 262243 was issued on February 1, 2010, and is current with one open complaint against Respondent’s license. Such prior License record also reflects that there was one complaint against Respondent’s license that was resolved/settled/withdrawn.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G) (2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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12. Failure in any material respect to comply with this chapter.
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9. The preponderance of the evidence shows that Granite Tech abandoned the contract without legal excuse in violation of Ariz. Rev. Stat. section 32-1154(A)(1).
10. Complainant established by a preponderance of the evidence that Granite Tech violated Ariz. Rev. Stat. section 32-1158(B) because Granite Tech did not provide Complainants with a written contract advising Complainants of their right to file a complaint with the Registrar against Respondent for an alleged violation Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B), and did not provide the Registrar’s telephone number or website address.
11. Granite Tech’s failure to appear on June 21, 2017 is considered a factor in
aggravation.
ORDER
Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license number 262243 be revoked unless Complainants’ deposit of $1,150 is reimbursed to them.
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 forty days from the date of that certification.
Done this day, July 11, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors