ALJDEC decisions subject to certification as final

2017A-1682-CHC-ROC · Registrar of Contractors · 2017-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Geraldine P Schrameck,

COMPLAINANT,

v.

JAGR Shed & Garage LLC,

License No: 303531

RESPONDENT.

No. 2017A-1682-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, 2017, at 1:00 PM.

APPEARANCES: Geraldine P. Schrameck and Thomas Schrameck (“Complainants”).

NON-APPEARANCE: JAGR Shed & Garage LLC (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

FINDINGS OF FACT

JAGR Shed & Garage LLC (Respondent) was issued License No. B.303531-R by the Arizona Registrar of Contractors (Registrar). Respondent’s address of record is 1103 North Opal Drive, Prescott, Arizona 86303-6216.

According to the public website of the Registrar of Contractors (“the Registrar”), Respondent’s License No. B.303531-R is current. Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. On this date, Respondent’s license is current.

On or about March 28, 2017, Complainant filed its complaint with the Registrar alleging that they entered into a Contract with Respondent on October 11, 2016, for Respondent to build a detached garage at their residence address of 1345 East Oxbow Circle, Paulden, Arizona 86334. The total sum of the contract was $26,500.00 to be paid in installments as set forth in the Contract. At the time of contracting, Complainant issued Check No. 172 to Respondent in the amount of $2,500.00.

Complainants stated there was a long delay from the date the plans were provided as they were drafted on October 25, 2016, and delivered on November 17, 2017, at which time Check No. 173 was issued to Respondent in the amount of $2,500.00.

Total payments made by Complainant to Respondent is $5,000.00.

Complainant asserted that a permit was not issued until February 17, 2017, at which time they spoke with the county to cancel the permit, and on March 11, 2017, sent a letter to Respondent providing notice to cancel the contract and refund the $5,000.00.

Complainant also provided in its Complaint a copy of an advertisement that Respondent distributed to the local community prior to contracting.

On April 21, 2017, the Registrar issued a Citation against Respondent’s contractor’s license alleging the following three charges:

Charge 1: A violation of A.R.S. §32-1154(A)(1).

Charge 2: A violation of A.R.S. §32-1154(A)(12); 1124(B).

Charge 3: A violation of A.R.S. §32-1154(A)(12); 1154(B).

The Registrar mailed a copy of the Citation and Complaint to Respondent at its address of record.

Investigator Jim Dimond of the Arizona Registrar of Contractors later sent an email to Respondent on April 14, 2017, indicating they spoke a couple of days ago regarding the matter and to send receipts to back up expenses incurred that Respondent asserted they would deduct from the $5,000.00 received from Complainant.

Respondent emailed a copy of an Invoice No. 262 dated November 3, 2016, in the amount of $1,000.00, and stated they would have the refund to Complainant as soon as possible.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On May 12, 2017, the Registrar issued a Notice of Hearing setting a hearing on July 6, 2017, at 1:00 p.m. in the OAH located in Flagstaff, Arizona. The Registrar mailed a copy 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.”

A hearing was held on July 6, 2017, beginning at 1:17 p.m. Complainant testified to establish that they paid the sum of $5,000.00 and that no work was performed.

Complainant reaffirmed the allegations in the Complaint as true and accurate account of its alleged complaint against the Respondent.

Complainant testified that they never received a copy of the Invoice Respondent provided to the Registrar until it was sent to the Registrar on April 26, 2017.

Complainant testified that as of the date of the hearing, they have not received any funds as stated by Respondent in its communication to the Registrar.

Respondent did not request to appear telephonically and did not request the July 6, 2017, hearing be continued. Although the start of the duly noticed hearing was delayed fifteen (15) minutes, Respondent did not appear through an authorized member, employee, or attorney, and did not contact the OAH to request the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to establish its affirmative defenses asserted in its Answer to the Written Citation and Complaint.

The Hearing was adjourned at 1:37 p.m. to which Respondent made no appearance.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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.

Complainant bears the burden of proof to establish statutory violations by a preponderance of the evidence.

The evidence established that Respondent violated A.R.S. §32-1154(A)(1) “Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal” since the contract was entered into on October 11, 2016, plans were provided on November 17, 2016, and nothing further transpired until February 17, 2017. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(1).

The evidence established that Respondent violated A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1124(B). The flyer Respondent circulated in the community mailer failed to comply with the following “license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.” Therefore, Complainant established that Respondent’s violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B).

The evidence established that Respondent violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). Under Respondent’s contract provided to Complainant, the contract fails to contain in writing several provisions required under this section. The Contract of Agreement for Residential Repair/ Remodel/Addition/ Construction, while not exhaustive, fails to fully identify the homeowner of the property; fails to provide an estimated date of completion of all work to be performed under the contract; fails to provide a detailed description of the work to be performed under the contract; and fails to comply with Notice to Customer of the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. In fact, the Contract provided to Complainant references ROC# 199593 which upon a search of the Registrar’s public website does not exist. Therefore, Complainant established that Respondent’s contract did not have all the required elements of a contract in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. B.303531-R for a period of three (3) days.

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, July 6, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors