ALJDEC decisions subject to certification as final

2017A-6209-CHC-ROC · Registrar of Contractors · 2018-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronald RJ Keilen,

COMPLAINANT,

v.

Gaxiola Flooring LLC,

License No: 303000

RESPONDENT.

No. 2017A-6209-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2018, 1:00 P.M.

APPEARANCES: Complainant Ronald Keilen appeared on his own behalf; Manuel Jesus Gaxiola, owner, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Gaxiola Flooring, LLC (Respondent), is the holder of License Number 303000 issued by the Registrar of Contractors (Registrar).

2. On or about December 15, 2017, Ronald Keilen (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the installation by Respondent of carpeting at Complainant’s residence in Paradise Valley, Arizona.

3. After an inspection of the job site on January 11, 2018, the Registrar issued a Directive dated January 11, 2018, requiring Respondent to remedy various alleged violations by January 26, 2018, based on the following:

Complaint Item 1: Payment made for carpet and installation. Installation date agreed upon and contractor has disappeared, not returning any phone calls and text messages to him. Last contact was 9/11/17.

4. When no corrective work was undertaken, the Registrar then issued a Citation to Respondent on January 30, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(1) (abandonment of a contract without legal excuse);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. 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 for April 4, 2018, at 1:00 P.M. At the hearing, Complainant Ronald Keilen testified on his own behalf; Manuel Jesus Gaxiola, owner, testified on behalf of Respondent.

6. Complainant testified that he paid the amount of $10,955.55 to Respondent on June 9, 2017, for Respondent to purchase and install carpeting. He further testified that Respondent did not purchase or install the carpeting and that Respondent retained the funds. He stated he has since purchased other carpeting and had it installed by another contractor.

7. Manuel Jesus Gaxiola on behalf of Respondent testified that everything Complainant said was true regarding Respondent taking the funds and not purchasing and installing the carpet and that Respondent is planning to repay Complainant the funds when it can.

8. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On March 19, 2018, Respondent’s License No. 303000 was suspended for lack of a bond. The administratively suspended status of Respondent’s license is considered a factor in aggravation of any determination of discipline.

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CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The administratively suspended status of Respondent’s license does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).

3. 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.

4. 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).

5. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

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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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.

6. Complainant has presented sufficient evidence to establish that Respondent has abandoned the contract with Complainant in violation of A.R.S. § 32-1154(A)(1). Respondent did not present any evidence of a legal excuse for abandonment.

7. Complainant has presented sufficient evidence to establish that Respondent has failed to take appropriate corrective action regarding the Directive in violation of A.R.S. § 32-1154(A)(22). Respondent did not present any evidence of valid justification for its failure to do so.

8. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1) and (A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Gaxiola Flooring, LLC’s, License Number 303000 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, April 24, 2018.

/s/ Roger A. Geddes_____

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors