ALJDEC decisions subject to certification as final
2018A-929-CHC-ROC · Registrar of Contractors · 2018-05-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Steven Richard Mackaig,
COMPLAINANT,
v.
J Burroughs Construction LLC,
License No: 270040, 270041
RESPONDENT.
No. 2018A-929-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 10, 2018, 1:00 P.M.
APPEARANCES: Complainant Steven Mackaig appeared on his own behalf; Joe Burroughs, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. J Burroughs Construction, LLC (Respondent), is the holder of License Numbers 270040 and 270041 issued by the Registrar of Contractors (Registrar).
2. On or about February 27, 2018, Steven Mackaig (Complainant), filed a Complaint against Respondent with the Registrar alleging nonperformance on the part of Respondent in connection with the building of an auto museum by Respondent in Lake Havasu City, Arizona.
3. After an inspection performed by the Registrar on March 6, 2018, the Registrar issued a Citation to Respondent, dated March 7, 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include information in contract).
4. 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 May 10, 2018, at 1:00 P.M. Complainant Steve Mackaig testified on his own behalf. Joe Burroughs, owner, testified on behalf of Respondent and presented the testimony of Craig Burroughs. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A - L and Respondent’s exhibits comprised of an unsigned contract and documentation relating to the hiring of an engineer.
5. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent and his inspection of the job site. The Investigator stated he observed only that some grading had been done at the site and that no other work had been done on the project. He further testified he never received a copy of the written contract if one existed between the parties.
6. Complainant Steven Mackaig testified that Respondent never abandoned the project, and that he in fact had fired Respondent by way of a termination letter. (Complainant’s Exhibit L). He further testified he never received a copy of a contract from Respondent to sign and that there was no written contract. He stated they had reached a verbal agreement in February 2016 to construct a building and that he made a series of payments totaling $45,160.00 over a 16 month period to Respondent for what he believed was very little work done. He stated the proposed size of the building changed over the course of the project and that Respondent was unable to receive approval from the city after Respondent submitted plans.
7. Joe Burroughs on behalf of Respondent testified as to the various reasons for the delay of the project, the costs that were incurred, and changes to the project. He further testified that he was terminated by Complainant and that at the time of termination, he had been ready to resubmit the plans to the city.
8. Craig Burroughs testified on behalf of Respondent that he was at the meeting at which Complainant handed Respondent the termination notice and that he observed that all drawings and plans were left at that time with Complainant.
9. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On February 16, 2018, Respondent’s License No. 270040 was suspended for lack of a bond. On March 1, 2018, Respondent’s License No. 270040 expired. The administratively suspended status or expiration of Respondent’s licenses are considered 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 administratively suspended status or expiration of Respondent’s licenses do not deprive Complainant of its 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(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.
...
12. Failure in any material respect to comply with this chapter.
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any “[a]ny 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:
...
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....”
7. Complainant has not presented sufficient evidence to demonstrate that the work was abandoned by Respondent. Rather, Complainant admitted that Respondent did not abandon the job and that he in fact fired Respondent. The testimony revealed that there are genuine issues between the parties regarding the scope of the agreement, the extent of Respondent’s performance, delay in performance, and payments owed, many of which might have been avoided with a written contract signed by the parties. However, none of these matters bear on the issue as to whether Respondent abandoned the work.
8. Complainant has presented evidence to demonstrate that the written contract between the parties did not meet the requirements of A.R.S. § 32-1158(A). The evidence reflects that the purported written contract between the parties for an amount exceeding $1,000.00 was never signed and the parties proceeded with the project without a signed contract. Even had it been signed, it did not contain the requisite disclosure language advising a property owner of its right to file a complaint with the Registrar.
9. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(12).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, J Burroughs Construction, LLC’s (Respondent), License Numbers 270040 and 270041 are suspended for one day.
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 30, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors