ALJDEC decisions subject to certification as final

2017A-4552-CHC-ROC · Registrar of Contractors · 2018-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen Renee Franco,

COMPLAINANT,

v.

Cementstainers.Com LLC,

License No: 306684

RESPONDENT.

No. 2017A-4552-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2018 at 1:00 PM

TELEPHONIC APPEARANCES: Karen Renee Franco (“Complainant”); Dawn Anne Merrill (“Respondent” for Cementstainers.com LLC); Ronald Cheek (“Mr. Cheek” witness for Respondent); and Gregory Johndrow (“Investigator Johndrow” for the Registrar of Contractors (“ROC” or “Registrar”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Arizona Revised Statutes (“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; Rule 4-9-108, Minimum Construction Standards in the Arizona Administrative Code (“A.A.C.”) and thereby of A.R.S. § 32-1154 (A)(3); and A.R.S.; § 32-1154(A)(22) Failure to take appropriate corrective action without valid justification. Testimony and evidence were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

According to the public website of the Registrar of Contractors (“the Registrar”), on or about August 5, 2016, issued License No. KB-2.306684-D for dual residential and small commercial contracting to Respondent. Respondent’s address of record is 1431 West Miracle Mile, Tucson, Arizona 85705-9321. As of June 12, 2017, Respondent’s license is suspended for lack of qualifying party.

On or about September 12, 2017, Complainant filed a complaint with the Registrar against Respondent’s license based on its alleged abandonment of its contract to repair roof at Complainant’s house located at 88725 North Auriga Way, Tucson, Arizona 85742. Complainant alleges Respondent’s qualifying party, Joshua Mattern received $2,924.10, on or about April 12, 2017, and that Respondent failed to perform to the terms of the contract entered or return the funds paid. The ROC number listed on the contract provided by Complainant in its complaint is ROC #306684. Josh Mattern is listed on the Name Search print date 09/07/2017, as the qualifying party for this ROC number.

The Registrar assigned the complaint to its Investigator Gregory Johndrow to investigate the complained of issue. On September 19, 2017, Investigator Johndrow sent a letter to Complainant and to Respondent at its address of record to notify them that he had scheduled a jobsite inspection on October 10, 2017.

Respondent was not present for the jobsite inspection. Complainant stated that the Respondent met with her insurance company, collected payment and never returned to perform the work. Investigator Johndrow substantiated Complainant’s claim of “Contractor received payment to purchase material and to begin work within 2 weeks-can no longer be reached.” Photographs of the roof were taken by Investigator Johndrow at the time of the Jobsite Inspection.

Investigator Johndrow issued a Directive on October 13, 2017, directing Respondent to remedy the following violations of completing the work per contract by appropriate means no later than October 30, 2017.

Investigator Johnsdrow telephoned Complainant on November 1, 2017, who confirmed that no corrective action was taken. Investigator Johnsdrow noted that the Directive has not been met and referred the complaint to the Registrar’s Legal Department.

On November 2, 2017, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1) abandonment; Rule 4-9-108, titled “minimum construction standards” A.R.S. 31-1154(A)(3); and A.R.S. 32-1154(A)(22) failure to take appropriate corrective action within the time prescribed without legal excuse. The Citation was sent certified to Respondent to its address of record, as well as an electronic copy to its email address of record.

An email written response to the citation was received from cementstainers.com on November 2, 2017. Respondent filed a written answer to the citation arguing that the qualifying party was not on behalf of its entity, and they had no knowledge of Joshua Mattern’s actions.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. A Notice of Hearing was sent to the parties on November 7, 2017.

A hearing was held on January 3, 2018. Investigator Johndrow credibly testified telephonically as to his involvement in the matter.

Respondent also appeared telephonically. Ronald Cheek (“Mr. Cheek”) stated he is the statutory agent for the entity and that he is not an employee of the Respondent.

Respondent submitted various exhibits relating to other issues its entity is involved with surrounding its qualifying party.

Dawn Anne Merrill (“Ms. Merrill”) stated she is the member listed on the Registrar’s public website. As of the date of the hearing, Ms. Merrill was still listed as the member for Respondent. Mr. Cheek was not listed as a member, qualifying party and when questioned if he is an employee of Respondent, he responded, no. Therefore, he was called as a witness by Ms. Merrill to provided testimony.

Ms. Merrill testified that Mr. Mattern was her boyfriend and that he stole from the Respondent, as well.

Complainant testified that the contract was never performed, and that she has hired another contractor to complete the repair work to her roof.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. Respondent’s license has three (3) open complaints and currently remains suspended for lack of a qualifying party.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged three (3) potential violations of (1) A.R.S. § 32-1154(A)(1) abandonment; (2) Rule 4-9-108 Minimum Construction Standards in the Arizona Administrative Code (“A.A.C.”) and thereby of A.R.S. § 32-1154 (A)(3); and (3) A.R.S. § 32-1154(A)(22) Failure to take appropriate corrective action without valid justification.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Complainant established that Respondent abandoned performance of its contract with Complainant without legal excuse. Therefore, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(1).

Complainant established a violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3). Based on credible testimony, it was established that the work that was to be done by Respondent was not in compliance with the Registrar’s workmanship standards regarding completion of the contract, and that the Prehearing Inspection conducted on November 1, 2017, further substantiates that the item listed in the October 13, 2017, Directive was not satisfactorily remedied by Respondent.

Respondent testified that they are victim to the qualifying party’s actions and that he was acting without its authorization. Also that the contract proposal name is not that of cementstainers.com or its address of record. This Tribunal finds this argument fails because Joshua Mattern was the qualifying party when contracting with Complainant and the ROC Number listed on its contract further identifies Joshua Mattern as the qualifying party for cementstainers.com LLC. Complainant established that Respondent did not complete any of the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive without valid justification and within a reasonable period of time. Complainants established failure to take appropriate remedial action. Therefore, it is established that Respondent violated A.R.S. § 32-1154(A)(22).

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. Administrative notice is taken of the Registrar of Contractors website. As of the time of this recommendation, Respondent’s license has three (3) open complaints and is suspended for lack of a qualified party.

All parties were present at hearing and Complainant established that they did not deny access to Respondents or any of the parties their rights to due process when Investigator Johndrow conducted the Prehearing Inspection.

RECOMMENDED DECISION

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. KB-2.306684-D for a period of two (2) days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 is forty days after the date of that certification.

Done this day, January 24, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors