ALJDEC decisions subject to certification as final

2017A-6231-CHC-ROC · Registrar of Contractors · 2018-05-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carl James Jaber,

COMPLAINANT,

v.

JGL Consulting LLC,

License No: 274797

RESPONDENT.

No. 2017A-6231-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 26, 2018, 8:30 A.M.

APPEARANCES: Complainant Carl Jaber appeared on his own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

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FINDINGS OF FACT

Background and Procedure

1. JGL Consulting, LLC (Respondent), is the holder of License Number 274797 issued by the Registrar of Contractors (Registrar).

2. On or about December 18, 2017, Carl Jaber (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with Respondent’s remodeling of a dining area at Complainant’s residence in Peoria, Arizona.

3. After an inspection performed by the Registrar on January 9, 2018, the Registrar issued a Directive, dated January 11, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by January 26, 2018, as follows:

Complete project per contract agreement between both parties.

4. When the Registrar was advised by Complainant that the foregoing item was not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated February 1, 2018, 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)(8) (failure to complete construction project for price stated in contract)

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

5. The Registrar issued a Notice of Hearing, dated March 9, 2018, that set a hearing for April 26, 2018, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about March 9, 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.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

7. A hearing was held on April 26, 2018, at 8:30 A.M. Complainant Carl Jaber testified on his own behalf. Steve Lawton, the Investigator, testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 18.

8. Although the commencement of the hearing was delayed approximately 20 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 April 26, 2018, hearing be continued.

9. Steve Lawton 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. Lawton testified that he observed during the inspection that no work had been done on the project. He stated he was further advised that Respondent performed no corrective work after the Directive was issued.

10. Complainant Carl Jager testified that he paid Respondent $10,815.00, but that Respondent had done no work. He stated Respondent attempted to schedule work on January 23, 2018, even though he stated Respondent was aware its license had been suspended.

11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On December 20, 2018, Respondent’s License No. 274797 was suspended due to lack of a qualifying party. On April 26, 2018, Respondent’s License No. 274797 was suspended due to the dissolution of the entity. The administratively suspended status of Respondent’s license is considered a factor in aggravation of any determination of discipline.

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 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 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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8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

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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.

6. 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.”

7. Complainant has presented sufficient evidence to demonstrate that the work was abandoned by Respondent, was not performed in a professional and workmanlike manner by Respondent, and was not completed by Respondent as per the price stated in the contract. 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.

8. 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), A.R.S. § 32-1154(A)(8), 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, JGL Consulting, LLC’s, License Number 274797 is revoked.

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, May 14, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors