FINACT2018A-05837-ROC.pdf

2018A-05837-ROC · Registrar of Contractors · 2019-06-25

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Arizona Registrar of Contractors, Case No. 2018-05837 COMPLAINANT, Docket No. 2018A-05837-ROC v. Bratton Construction LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 298187, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on August 5, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand- delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTES

On page 1, line 26 replace, “$84,800.00” with “$93,000.00”.

Dated June 24, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail June 24, 2019 to: Respondent Bratton Construction LLC 8402 E San Miguel Ave Scottsdale, AZ 85250 AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar

Registrar’s Counsel Thomas Raine, Assistant Chief Counsel Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge

Case No. 2018-05837/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 6.20.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors, No. 2018A-05837-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE v. DECISION Bratton Construction LLC, ROC License: ROC 298187 RESPONDENT

HEARING: May 30, 2019 APPEARANCES: Ray Bratton, Owner and Qualifying Party, appeared on behalf of Respondent Bratton Construction LLC. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Bratton Construction LLC (Respondent) is the holder of License No. 298187 issued by the Arizona Registrar of Contractors (Registrar) on May 7, 2015. 2. On or about June 1, 2017, Respondent failed to timely renew its license and the Registrar suspended License No. 298187 by operation of law pursuant to A.R.S. § 32-1125(A). 3. On or about June 19, 2017, Respondent submitted a renewal application and the appropriate fee to the Registrar for License No. 298187 and the Registrar lifted the suspension pursuant to A.R.S. § 32-1125(A). 4. On or about October 25, 2016, Respondent provided Brandon Michael Copeland an estimate for a residential remodeling project for approximately $84,800.00. The estimate did not include Respondent’s license number, an estimated date of completion, or a statement that the property owner had the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A). 5. Respondent and Mr. Copeland proceeded to have discussions regarding the project until Mr. Copeland decided to proceed with the project including a written

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 6.20.2019 ROC LEGAL

bid on May 12, 2017, in the amount of $93,040.50. On or about June 9, 2017, Mr. Copeland paid Respondent a deposit of $12,000.00 via check. Respondent did not have a written contract with Mr. Copeland, and the contract was verbal only.

6. On or about September 27, 2017, Brandon Michael Copeland filed a

complaint with the Registrar alleging poor workmanship by Respondent.

7. On or about October 17, 2017, the Registrar issued a written directive

requiring Respondent to perform corrective work by November 3, 2017.

8. On or about November 8, 2017, the Registrar issued a citation against

Respondent’s License No. 298187 in Case No. 2017-4930 alleging violations of A.R.S.

§ 32-1154(A)(1), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).

9. On or about March 6, 2018, after an administrative hearing the Registrar

issued a Final Administrative Decision and Order finding that Respondent violation

A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22) and suspended Respondent’s

License No. 298187 for one day.

10. On or about May 10, 2018, Mr. Copeland filed a claim with the Residential

Contractors’ Recovery Fund (Recovery Fund).

11. After review and an administrative hearing, the Administrative Law Judge issued a recommended decision finding that Mr. Copeland was not eligible to receive a payout from the Recovery Fund because an award “is not available to a person injured if the contractor’s license was inactive or suspended at the time the subject contract was entered into.” 12. Specifically, the Administrative Law Judge found that the evidence “established that Respondent’s license was inactive from June 1 through June 19, 2017.” 13. Furthermore, the Administrative Law Judge found that the parties did not execute a written contract for the project and “the parties did not agree on a payment schedule until the textual exchange of June 8 – 9, 2017, when they agreed on yet a different down payment of $12,000.00 with the rest to be paid within two weeks thereafter.” The Administrative Law Judge found that Mr. Copeland wrote his first check to Respondent on June 9, 2017 for $12,000.00. RECEIVED 6.20.2019 ROC LEGAL

14. On or about October 31, 2018, the Registrar accepted the Administrative Law Judge Decision. 15. On or about December 11, 2018, the Registrar issued a Citation to

Respondent alleging a possible violation of A.R.S. § 32-1154(A)(17) and A.R.S. § 32-

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

16. At hearing, Chance Peterson, Assistant Chief Counsel for the Registrar,

testified that Mr. Copeland did not receive a payout from the Recovery Fund solely

because the Registrar used the date of the deposit on June 9, 2018, to be the date of

the contract, and that on that date, Respondent’s license was suspended.

17. At hearing Marlee McCormick, Assistant Chief of Licensing for the

Registrar, testified that in her prior position as a Legal Assistant for the Recovery Fund,

she reviewed Mr. Copeland’s claim. Ms. McCormick stated that in analyzing the claim,

she used the $93,000.00 contract amount and considered the $37,000.00 Mr.

Copeland paid to Respondent. Ms. McCormick reviewed the three bids submitted by

Mr. Copeland and compared the scope of work in those bids to the scope of the work in

the estimate from Respondent. Ms. McCormick concluded that, taking into account the

scope of the work and the amount still owing on the contract with Respondent, Mr. Copeland’s actual damages were $37,545.53. Ms. McCormick testified that the Recovery Fund has a maximum payout of $30,000.00 and, if Respondent’s license was not suspended at the time of its contract with Mr. Copeland, Mr. Copeland would have received the $30,000.00 payout from the Recovery Fund. 18. At hearing, Amanda Copeland testified as to her experience with Respondent during the process. Ms. Copeland stated that they repeatedly checked the Registrar’s website to determine ensure Respondent was properly licensed, but they did not check around the time of the deposit. Ms. Copeland stated that when Respondent left the project the home was “in shambles” with wires left hanging, cut concrete, pipes exposed, windows removed, the back arcadia door removed, and a cut through a header. 19. Raymond Bratton, Owner and Qualifying Party, testified that the Registrar denied the Recovery Fund claim and he believed that the matter was concluded. Mr. RECEIVED 6.20.2019 ROC LEGAL

Bratton indicated that Mr. Copeland released Respondent from the contract and the door was not closed because Respondent was not allowed back on the property. 20. Administrative notice is taken of Respondent’s prior License record on

June 19, 2019. Such prior License record reflects that Respondent’s License No.

298187 was first issued on May 7, 2015, and has been suspended for non-renewal

since June 6, 2019. Such prior License record also reflects that there were no other

open complaints and two prior complaints resulting in discipline, 2017-4930 and 2018-

516.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101

et seq.

2. Complainant bears the burden of proof to establish Respondent’s

statutory violations by a preponderance of the evidence. See A.R.S. § 41-

1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 3. The evidence established that Respondent entered into the contract with Mr. Copeland on June 9, 2017, while its license was suspended. Therefore, the Registrar established that Respondent contracted while its license was under suspension in violation of A.R.S. § 32-1154(A)(17).1 4. The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A).2 Therefore, the A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” A.R.S. § 32-1158 provides as follows: A. Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. RECEIVED 6.20.2019 ROC LEGAL

Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).3 5. A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this

article, an administrative law judge may recommend that a licensee provide restitution

to any person who is injured or whose property is damaged by an action of the

licensee.”

6. The evidence presented at hearing established that, but for Respondent

entering into a contract with Mr. Copeland while Respondent’s license was suspended,

Mr. Copeland would have received a payout from the Recovery Fund in the amount of

$30,000.00. Thus, Mr. Copeland was injured by Respondent’s violation of A.R.S. § 32-

1154(A)(17) in the amount of $30,000.00.

7. A.R.S. § 32-1154(F) provides that the Registrar shall impose a civil

penalty not to exceed $1,000.00 for each violation of A.R.S. § 32-1154(A)(17).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar suspend Bratton Construction LLC’s License No. 298187 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Mr. Copeland $30,000.00 in certified funds.

3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” RECEIVED 6.20.2019 ROC LEGAL

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Mr. Copeland $30,000.00 in certified funds, the Registrar may close the Complaint in Case No. 2018-05837.

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(F).

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)(7), 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 will be

40 days from the date of that certification.

Done this day, June 19, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors