ALJDEC decisions subject to certification as final

2019A-05503-CHC-ROC · Registrar of Contractors · 2020-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Don Phillip Lynch,

COMPLAINANT

Neal J Eley,

License No. ROC 258470,

RESPONDENT

No. 2019A-05503-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 27, 2020

APPEARANCES: Don Phillip Lynch on his own behalf; Neal J. Eley for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 26, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 27, 2020 at the Office of Administrative Hearing.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Neal J. Eley on January 15, 2020. Respondent holds license No. 258470 issued by ROC.

Complainant Don Phillip Lynch hired Respondent to perform work at Complainant’s mobile home in Topock Arizona.

The scope of work called for Respondent to build patio covers at the front and back of the house and to make repairs inside the house.

Complainant was to pay Respondent $5650 for the front patio cover, $4935 for the rear patio cover, $1250 for the interior repairs, and a $200 delivery charge.

The agreement called for Complainant to pay one-half down and the remainder on completion of the work.

On May 7, 2019, Complainant wrote Respondent a check for the down payment. That check was misplaced and on May 20, 2019, Complainant wrote to Respondent a check for $6035 that was cashed by Respondent.

Respondent completed the work on the interior repairs, but did not perform the remainder of the work.

Respondent is seeking a refund of $4785, which is the down payment amount of $6035 less $1250 for the interior work that was completed.

Respondent acknowledged that he did not complete the work he agreed to complete, and testified to the effect that this was a result of a number of personal or other problems. Respondent testified that he was willing to complete the project or to make a refund to Complainant. Respondent took the positon however that the refund should be reduced to account for the cost to prepare plans.

As of the hearing date, the plans had not been completed and Complainant had not been provided with a copy of the plans.

ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(1) and (A)(22).

CONCLUSIONS OF LAW

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.

“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).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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:

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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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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The preponderance of the evidence shows that Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(1) by failing to complete the work he contracted to perform without providing a legal justification for that failure.

It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

Considering the above, Respondent’s license should be suspended until ROC receives proof that Respondent has paid to Complainant $4785 as restitution for his violation of Ariz. Rev. Stat. section 32-1154(A)(1). See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430, (App. 1990)(ROC may order a party to pay restitution as a condition to the reinstatement of a suspended license.).

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter, the Registrar of Contractors suspend Respondent Neal J. Eley’s license number 258470 until such time that the Registrar receives proof that Respondent has paid to Complainant Don Phillip Lynch $4785 as restitution for Respondent’s violation of Ariz. Rev. Stat. section 32-1154(A)(1).

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.

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-137160-45720000Done this day, April 29, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000