ALJDEC decisions subject to certification as final

2019A-01739-OMC-ROC · Registrar of Contractors · 2019-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2019 APPEARANCES: Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors. No one appeared on behalf of Respondent Matrix Management, Inc. DBA: Sun City Awning and Patio. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On April 9, 2019, the Registrar of Contractors (“Registrar”) issued an Order of Summary Suspension, Order Consolidating Cases, and Notice of Promptly Instituted Proceeding (“Order”) setting the above-captioned matter for hearing at 8:30 a.m. on April 15, 2019, at the Office of Administrative Hearings. 2. No representative appeared for Respondent Matrix Management, Inc., DBA: Sun City Awning and Patio (“Matrix”) at the scheduled time and the hearing was convened in its absence at about 8:48 a.m. 3. In the Order, the Registrar presented its determination that the public welfare imperatively required emergency action and it summarily suspended Matrix’s license. Citing Ariz. Rev. Stat. § 41-1092.11(B). 4. Matrix holds license numbers 208365 and 208366 issued by the Registrar. 5. On April 10, 2019, the Registrar also issued a Supplemental Notice to clarify and detail the specific charges against Matrix. 6. The Supplemental Notice provided a Statement of Facts and a Formal Statement of Alleged Violations in which Registrar alleged that Matrix had committed two violations of Ariz. Rev. Stat. sections 32-1154(A)(1). 7. The Registrar is requesting that Matrix’s license be revoked. 8. In April of 2019, the Registrar received four complaints against Matrix, all of which alleged abandonment. These matters were consolidated into this single proceeding. 9. Because of this public safety issue and to protect the public welfare by eliminating the risk that other consumers would enter contracts with Matrix, the Registrar issued its Order summarily suspending Matrix’s license. The preponderance of the evidence shows that Registrar was justified in issuing the summary suspension. 10. A hearing was held on April 15, 2019. 11. The Registrar presented the testimony of Senior Investigator Steve Lawton. The Registrar submitted exhibits 1 through 14. 12. On or about October 24, 2018, Jane Flach entered into a contract with Matrix wherein Matrix would replace the arms to her retractable awnings for $1,178. Ms. Flach paid Matrix a deposit in the amount of $589. According to the proposal, the project was expected to last two to four weeks after any required permit or approval from a home owner’s association was obtained. 13. Matrix never began work on Ms. Flach’s home. 14. On or about April 4, 2019, the Registrar received a complaint from Ms. Flach alleging abandonment on the part of Matrix in connection with a residential repair construction contract. 15. On or about April 8, 2019, Investigator Lawton conducted a jobsite inspection regarding Ms. Flach’s complaint. Investigator Lawton observed that Matrix had not replaced the arms on Ms. Flach’s awnings. 16. On or about February 12, 2019, William Holicz entered into a contract with Matrix wherein Matrix would install awnings at Mr. Holicz’s home for $7,677. Mr. Holicz paid Matrix a deposit in the amount of $3,839. Matrix never began work on Mr. Holicz’s home. 17. On or about April 4, 2019, the Registrar received a complaint from Mr. Holicz alleging abandonment on the part of Matrix in connection with a residential construction contract. 18. On or about April 8, 2019, Investigator Lawton conducted a jobsite inspection regarding Mr. Holicz’s complaint. Investigator Lawton observed that Matrix had not installed any awnings at Mr. Holicz’s home. In addition, a permit would have been required for the installation. 19. During Mr. Lawton’s jobsite inspection on April 8, 2019, he visited the business address of Matrix. Matrix had a sign posted that was dated April 5, 2019 which explained that the business was forced to close its doors and it apologized for the frustration and inconvenience. 20. On or about May 30, 2018, Joan R. Stukenborg entered into a contract with Matrix wherein Matrix would install a patio screen at her home $1,494. 21. Ms. Stukenborg paid Matrix a down payment in the amount of $747. According to the proposal, the project was expected to completed within 7 to 9 weeks after any required permit or approval from a home owner’s association was obtained. 22. On or about April 8, 2019, the Registrar received a complaint from Ms. Stukenborg alleging that she paid Matrix a down payment to install a patio screen but Matrix never performed the work. 23. On April 12, 2019, Investigator Lawton conducted a job site inspection in connection with the complaint. Investigator Lawton observed that Matrix had not begun work on Ms. Stukenborg's home. 24. On or about December 2, 2018, Marta LeMoyne entered into a contract with Matrix, wherein Matrix would install a retractable awning at Ms. LeMoyne’s home for $10, 242.50. Ms. Lemoyne paid Matrix a deposit in the amount of $5,121.10. According to the proposal, the project was expected to last approximately 6 to 8 weeks after any required permit or approval from a home owner’s association was obtained. 25. On or about April 8, 2019, the Registrar received a complaint from Ms. LeMoyne alleging abandonment on the part of Matrix. 26. On April 12, 2019, Investigator Lawton conducted a job site inspection in connection with the complaint. Investigator Lawton observed that Matrix had not begun work on Ms. LeMoyne’s home. CONCLUSIONS OF LAW 1. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G) (2). 2. Respondent’s suspended license does not deprive Complainant their right to prosecute the complaints or prevent the Registrar from determining the merits of the complaints. See A.R.S. § 32-1154(D). 3. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

6. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 7. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 8. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 9. The undisputed evidence in this matter established that Respondent violated A.R.S. § 32-1154(A)(1) and several residential construction contracts. Respondent failed to install any awnings or patio shades despite being paid a deposit of approximately fifty percent of every contract. Respondent left the job uncompleted and failed to make arrangements with a properly licensed contractor to complete the work. 10. Matrix’s license should be revoked. ORDER IT IS ORDERED that on the effective date of the final Order in this matter, Matrix Management, Inc., DBA: Sun City Awning and Patio’s license numbers 208365 and 208366 are 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 is forty days after the date of that certification. Done this day, April 22, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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