ALJDEC decisions subject to certification as final

2017A-996-SSC-ROC · Registrar of Contractors · 2017-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

-v-

Creative Paradise Inc.

License No. 154118

License No. 154119

RESPONDENT

No. 2017A-996-SSC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 28, 2017

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier. Respondent Creative Paradise Inc. did not appear through an authorized representative.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On April 13, 2000, the Registrar issued License Nos. 154118 and 154119 to Respondent. Respondent’s address of record on both licenses was 2475 East Queen Creek Road, Gilbert, Arizona 85297.

Between February 16, 2017, and February 21, 2017, the Registrar received four complaints from homeowners against Respondent. All of the complaints alleged abandonment.

On February 22, 2017, the Registrar issued an Order of Summary Suspension & Notice of Promptly Instituted Proceeding (Order) to Respondent at its address of record finding that “the public health, safety or welfare imperatively requires emergency action” because Respondent was “the subject of numerous complaints filed with the Registrar alleging abandonment.” The Registrar asserted that it had “a good faith belief” that Respondent had committed four violations of A.R.S. § 32-1154(A). The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an expedited evidentiary hearing. Exhibit A.

On February 23, 2017, the Registrar issued a Notice Rescheduling Hearing and Notice of Clerical Correction (Notice Rescheduling Hearing) issued to Respondent at its address of record setting the matter for hearing at 8:30 a.m. on February 28, 2017. Exhibit B.

On February 23, 2017, the Registrar emailed Chris Dutkiewicz, whom the Registrar understood to be Respondent’s attorney for possible bankruptcy proceedings, notifying him of the hearing scheduled for February 28, 2017. The Registrar requested that Mr. Dutkiewicz either put the Registrar in contact with Respondent or provide Respondent with the documents relating to this hearing. Mr. Dutkiewicz responded that he did not believe Respondent was intending to defend its licenses. Exhibit C.

On February 24, 2017, the Registrar issued a Supplemental Notice (Notice) to Respondent at its address of record with a courtesy copy sent to Chris Dutkiewicz, whom the Registrar understood to be Respondent’s attorney for possible bankruptcy proceedings. The Notice included specifics as to the four complaints that had been filed regarding Respondent. The Notice also included a formal statement of alleged violations including four violations of A.R.S. § 32-1154(A)(1) and a violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). Exhibit D.

On February 23, 2017, the Registrar received two additional complaints from homeowners.

On February 27, 2017, the Registrar issued a Second Supplemental Notice (Second Notice) to Respondent via email with a courtesy copy sent to Mr. Dutkiewicz via email. The Second Notice included specifics as to the two additional complaints that had been filed regarding Respondent. The Notice also included a formal statement of alleged violations including two additional violations of A.R.S. § 32-1154(A)(1). Exhibit E.

An evidentiary hearing was held on February 28, 2017. Respondent did not request that its representative be allowed to appear telephonically. Although the hearing did not start until approximately 8:46 a.m. and did not conclude until approximately 9:30 a.m., Respondent did not appear, through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

The Registrar submitted 30 exhibits and presented the testimony Joseph Citelli, Registrar Staff Attorney.

Hearing Evidence

The Homeowners’ Complaints

Jason Gene Hubbard and Jennifer Ann Hubbard’s Complaint (Case No. 2017-946)

On February 16, 2017, Jason Gene Hubbard and Jennifer Ann Hubbard filed a complaint with the Registrar against Respondent alleging abandonment of its January 6, 2017 contract to perform landscaping work at their home. According to the documentation, the Hubbards had paid Respondent $8,400.00 of the $16,776.50 contract price.

Joel E. Driggs’ Complaint (Case No. 2017-954)

On February 17, 2017, Joel E. Driggs filed a complaint with the Registrar against Respondent alleging abandonment of its November 16, 2016 contract to perform landscaping work at his home. According to the documentation, Mr. Driggs had paid Respondent $16,080.00 of the $24,825.86 contract price.

Angela Melissa Toth’s Complaint (Case No. 2017-955)

On February 17, 2017, Angela Melissa Toth filed a complaint with the Registrar against Respondent alleging abandonment of its December 30, 2016 contract to perform landscaping work at her home. According to the documentation, Ms. Toth had paid Respondent $14,994.94 of the $29,989.88 contract price.

Deborah L. Garner and Chad D. Garner’s Complaint (Case No. 2017-975)

On February 21, 2017, Deborah L. Garner and Chad D. Garner filed a complaint with the Registrar against Respondent alleging abandonment of its February 7, 2017 contract to perform landscaping work at their home. According to the documentation, the Garners had paid Respondent $5,000.00 of the $9,907.02 contract price.

Frederick Bryan Sweeney’s Complaint (Case No. 2017-1041)

On February 23, 2017, Frederick Bryan Sweeney filed a complaint with the Registrar against Respondent alleging abandonment of its December 7, 2016 contract to perform landscaping work at his home. According to the documentation, Mr. Sweeney had paid Respondent $7,200.00 of the $21,701.14 contract price.

Charles Lyon’s Complaint (Case No. 2017-1046)

On February 23, 2017, Charles Lyon filed a complaint with the Registrar against Respondent alleging abandonment of its December 3, 2016 contract to perform landscaping work at his home. According to the documentation, Mr. Lyon had paid Respondent $1,000.00 of the $10,994.25 contract price.

A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B)

None of the contracts submitted with the above complaints included an estimated date of completion of all work to be performed under the contract or a statement that the property owner has the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154.

CONCLUSIONS OF LAW

The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints. These matters lie within the Registrar’s jurisdiction.

The Order, Notice Rescheduling Hearing, Notice, and Second Notice sent to Respondent at its address of record was reasonable. Respondent is deemed to have received notice of the hearing.

The Registrar bears the burden of proof to establish cause to discipline Respondent’s license 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.”

The Registrar established that Respondent abandoned without legal excuse the projects of the Hubbards, Mr. Driggs, Ms. Toth, the Garners, Mr. Sweeney, and Mr. Lyon. Therefore, the Registrar established six violations of A.R.S. § 32-1154(A)(1).

The Registrar established that Respondent’s contracts did not include the required elements of the contract. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B).

With respect to the appropriate penalties, Respondent’s pattern of taking deposits or payments in full on new contracts while previously failing to fulfill existing contracts indicate that at this time, Respondent cannot be regulated. The Registrar has established more than ample cause to summarily suspend Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, the Registrar’s February 22, 2017 order summarily suspending Respondent Creative Paradise, Inc.’s License Nos. 154118 and 154119 shall be affirmed.

It is further recommended that Respondent’s License Nos. 154118 and 154119 shall be revoked.

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 five days from the date of that certification.

Done this day, February 28, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors