ALJDEC decisions subject to certification as final

2017A-437-ROC · Registrar of Contractors · 2017-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anthony E. Zink and Cecil M. Zink,

COMPLAINANT,

v.

Handyman Randy, LLC

DBA: HMR Properties Services,

License No: 295636

RESPONDENT

No. 2017A-437-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2017

APPEARANCES: Complainant Anthony E. Zink appeared on his own behalf. Respondent Handyman Randy, LLC doing business as HMR Properties Services did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Handyman Randy, LLC doing business as HMR Properties Services (Respondent) is the holder of License No. 295636 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 31, 2016, Anthony E. Zink (Complainant) signed a contract with Respondent for, among other things, installing tile in the master bathroom, office, and dining room; painting the home interior; and building an interior wall. The total contract price was $14,800.00. Complainant paid a $1,000.00 deposit at the time of the contract and another $5,000.00 before work commenced.

As the project proceeded, Complainant was concerned with Respondent’s performance and narrowed the scope of the contract. Eventually, the work was to be completed for a total of $6,500.00.

On or about January 24, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. On February 24, 2017, Investigator Klein conducted a jobsite inspection and Respondent was not present. At that time, Respondent’s license was suspended for non-renewal.

After a jobsite inspection, Investigator Klein forwarded the matter to legal for abandonment.

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)(16).

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 May 3, 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.”

The hearing was then continued and ultimately convened on August 24, 2017.

Investigator Klein testified that the work was not complete and Respondent had abandoned the project. Investigator Klein also stated that Respondent had an R-62 license that allowed it to enter into contracts up to $5,000.00.

Complainant testified that Respondent had four workers on the project and that Complainant had paid a worker directly to stay and finish the exterior painting due to homeowner association concerns. Complainant also stated that Randy Cornelison, Respondent’s Qualifying Party and Member, indicated he was having health issues, but asserted that Mr. Cornelison’s health concerns should not have prevented the four workers from performing the work on the project.

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 September 11, 2017. Such prior License record reflects that Respondent’s License No. 295636 was first issued on January 12, 2015, was suspended from January 9, 2017, through January 19, 2017, for lack of bond; was suspended on February 1, 2017, for nonrenewal; was revoked on July 12, 2017; and was revoked on August 15, 2017, for failure to pay a civil penalty. Such prior License record also reflects that there was one open complaint, one prior resolved/settled/withdrawn complaint, and one previous complaint 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.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and the Minute Entry Continuance that the Office of Administrative Hearings mailed to Respondent 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 revoked license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

Complainants bear 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 did not complete the work outlined in the initial contract or the amended contract. Therefore, Complainants established that Respondent abandoned the project in violation A.R.S. § 32-1154(A)(1).

The evidence established that Respondent entered into an initial contract totaling $14,800.00 and an amended contract totaling $6,500.00. Both contracts were in excess of the $5,000.00 contract limit allowed by Respondent’s R-62 license. Therefore, Complainants established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

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. 295636.

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, September 11, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors