ALJDEC decisions subject to certification as final
2017A-5538-CHC-ROC · Registrar of Contractors · 2018-03-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kim O Ballew,
COMPLAINANT,
v.
Atlas Restoration and Construction LLC ,
License No: 306687
RESPONDENT.
No. 2017A-5538-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 9, 2018, 1:00 P.M.
APPEARANCES: Complainant Kim Ballew appeared on his own behalf; there was no appearance by or on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Atlas Restoration and Construction, LLC (Respondent), is the holder of License Number 306687 issued by the Registrar of Contractors (Registrar).
2. On or about November 2, 2017, Kim Ballew (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the renovation by Respondent of residential property in Phoenix, Arizona.
3. After an inspection performed by the Registrar on November 20, 2017, the Registrar issued a Directive, dated November 20, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 4, 2017, as follows:
Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
4. When foregoing item was not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated December 8, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract without legal excuse for the abandonment);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards).
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated January 3, 2018, that set a hearing for February 22, 2018, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about January 3, 2018, at its address of record.
6. 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.”
7. The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
8. On February 6, 2018, the matter was continued to March 9, 2018, at 1:00 P.M., at the request of Complainant. A Minute Entry - Granting Continuance was emailed to Respondent on February 6, 2018, at its email address of record.
9. By email dated March 7, 2018, Respondent advised the Tribunal that it would not be attending the March 9, 2018, hearing.
10. A hearing was held on March 9, 2018, at 1:00 P.M. Complainant Kim Ballew testified and presented the testimony of Wes Ballew. Steve Klein, the Investigator, testified on behalf of the Registrar. The Tribunal took administrative notice of the Registrar’s file.
11. Although the commencement of the hearing was delayed approximately 25 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the March 9, 2018, hearing be continued.
12. Steve Klein on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Mr. Klein testified that he was advised that Respondent performed no corrective work.
13. Complainant Kim Ballew testified that he had numerous conversations and communications with Respondent regarding completion of the work but that Respondent refused to complete the work. He also testified that Respondent’s work failed inspection twice in connection with the building permit process.
14. Wes Ballew testified on behalf of Complainant that at no time was Respondent ever fired from the job. Rather, he testified that Respondent begged them to continue with the job but never showed up to the job site.
CONCLUSIONS OF LAW
1. The copy 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 hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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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3. Violation of any rule adopted by the registrar.
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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. Complainant has presented sufficient evidence to demonstrate that the work was abandoned and not performed in a professional and workmanlike manner by Respondent. Complainant has also presented sufficient evidence to demonstrate the failure on the part of Respondent to undertake corrective action. No evidence was presented to rebut Complainant’s evidence.
7. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Atlas Restoration and Construction, LLC’s, License Number 306687 is suspended for five days.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, March 29, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors