ALJDEC decisions subject to certification as final

2018A-1234-CHC-ROC · Registrar of Contractors · 2018-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sheridan Roberts,

COMPLAINANT,

v.

Sergio Fazz dba,

Sergio's House Of Carpets ,

License No: 97916, 97908

RESPONDENT.

No. 2018A-1234-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 9, 2018, 8:30 A.M.

APPEARANCES: Complainant Sheridan Roberts appeared on his own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Sergio Fazz, dba Sergio's House Of Carpets (Respondent), is the holder of License Numbers 97916 and 97908 issued by the Registrar of Contractors (Registrar).

2. On or about March 16, 2018, Sheridan Roberts (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the installation of carpeting by Respondent at a residence in Yuma, Arizona.

3. The Registrar then issued a Citation to Respondent, dated April 20, 2018, for the alleged violation of the following:

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

b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards).

4. The Registrar issued a Notice of Hearing, dated May 31, 2018, that set a hearing for July 9, 2018, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 31, 2018, at its address of record.

5. 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.

6. A hearing was held on July 9, 2018, at 8:30 P.M. Complainant Sheridan Roberts testified on his own behalf. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 4.

7. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on his own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend his licenses. Respondent further did not request to appear telephonically nor did he request that the hearing be continued.

8. Complainant Sheridan Roberts testified that on or about October 28, 2016, he paid Respondent $800.00 as a down payment for carpeting that was to be installed and Respondent never installed any carpeting nor did he return Complainant’s deposit. He further stated that Respondent had advised him that Respondent had gone out of business.

. 9. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On July 28, 2017, Respondent’s License Numbers 97916 and 97908 were revoked. The revoked status of Respondent’s licenses is considered as a factor in aggravation of any determination of discipline.

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 revoked status of Respondent’s licenses does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“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. 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).

6. 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.

7. 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.”

8. Complainant has presented sufficient evidence to demonstrate that Respondent has refused to perform work and further that Respondent consequently has not performed work in a professional and workmanlike manner. No evidence was presented to rebut Complainant’s evidence or to support a legal excuse for refusal to perform work.

9. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Sergio Fazz, dba Sergio's House Of Carpets’, License Numbers 97916 and 97908 are 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, July 30, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors