ALJDEC decisions subject to certification as final

2017A-1885-CHC-ROC · Registrar of Contractors · 2017-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Jon Graham,

COMPLAINANT,

v.

Troy Eugene Somers

DBA: Adobe Plastering,

License No: 138311

RESPONDENT.

No. 2017A-1885-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 28, 2017

APPEARANCES: Complainant David Jon Graham appeared on his own behalf. Respondent did not appear at the hearing.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Troy Eugene Somers doing business as Adobe Plastering (Respondent) is the holder of License No. 138311 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 24, 2106, David Jon Graham (Complainant) entered into a contract with Respondent to complete lath and plaster work on a project.

On or about April 10, 2017, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. Investigator Corlett did not schedule a jobsite inspection, but he stopped by the property on May 8, 2017, when he was driving through the area. Investigator Corlett noted that the complaint involved an owner builder project; Respondent’s proposal had no date on it; the signed proposal and a $7000.00 deposit check was issued to Respondent on March 24, 2016; Complainant reported that Respondent erected partial scaffolding in April 2016 and removed it prior to an onsite meeting scheduled between the parties on March 25, 2017; and nothing in the proposal set a time limit for Complainant to provide a structure ready and suitable for lath and plaster. Investigator Corlett referred the case to legal as an abandonment.

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

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 July 28, 2017, at 8:30 a.m. 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.”

A hearing was held on July 28, 2017. Complainant testified on his own behalf and submitted two exhibits.

Complainant testified that he opted to contract with Respondent based on the recommendation of the framing contractor on the project. Complainant indicated that Respondent erected the partial scaffolding pursuant to a side agreement with the framing contractor. Complainant stated he entered into the contract with Respondent before the project was ready for the lath and plaster because Respondent needed the deposit money to buy additional scaffolding. Complainant denied requesting that Respondent erect the scaffolding when it did, and that Respondent’s decision to erect the scaffolding earlier than its trade required was its choice based on the agreement with the framing contractor. Complainant stated that he never negotiated a start time for the contract.

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.

Administrative notice is taken of Respondent’s prior License record on August 17, 2017. Such prior License record reflects that Respondent’s License No. 138311 was first issued on August 21, 1998, and is currently suspended due to lack of bond. Such prior License record also reflects that there were no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of 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. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 evidence established that Respondent failed to complete the lath and plaster work on the project set forth in the March 2016 contract. While Complainant did not have the project ready for the work to begin until over a year after the parties entered into the contract, the contract did not provide any start or end date on which Respondent could rely in terminating the contract. Therefore, Complainant established that Respondent abandoned the contract without legal excuse for the abandonment in violation of A.R.S. § 32-1154(A)(1).

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. 138311 for a period of ten 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, August 21, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors