ALJDEC decisions subject to certification as final

2020A-00008-CHC-ROC · Registrar of Contractors · 2020-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary Starr,

COMPLAINANT,

v.

Danny Patrick Carroll,

DBA: Weather Guard Improvements,

License Nos. ROC 312724 & ROC 317314,

RESPONDENT.

No. 2020A-00008-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 26, 2020, at 9:00 a.m. and June 2, 2020, at 9:00 a.m.

APPEARANCES: Gary Starr (“Complainant”) appeared at the June 2, 2020 hearing date on his own behalf; Danny Patrick Carroll DBA: Weather Guard Improvements (“Respondent”) appeared at the May 26, 2020 hearing date on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about April 28, 2017, the Registrar issued License No. ROC 312724 for Specialty Residential R-62 Minor Home Improvements to Respondent. On or about December 21, 2017, the Registrar issued License No. ROC 317314 for Specialty Residential R-42 Roofing to Respondent.

On or about December 31, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged that he had contracted to perform work at Complainant’s house at 21329 N. Redington Point Drive, Surprise, Arizona and that Respondent had “upsold” the project by saying that additional work was necessary. After accepting Complainant’s $4,800.00 payment for the additional work, Respondent had not performed any additional work.

Complainant attached to the complaint a copy of Respondent’s contract dated November 25, 2019, to “[l]ocate the support beam damaged and apply wood epoxy to damaged support, readjust the shifting caused by support coming loose, [and] install added supports . . .” and Complainant’s check for $4,800.00, endorsed by Respondent.

The complaint was assigned to the Registrar’s Investigator, Chris Fultz. On January 26, 2020, Investigator Fultz issued a Jobsite Inspection Notice, notifying the parties that he had scheduled a jobsite inspection on February 4, 2020, at 12:00 p.m. Complainant but not Respondent attended Investigator Fultz’ jobsite inspection.

Investigator Fultz’ jobsite inspection notes state as follows:

Upon arrival, I spoke with [Complainant] and he stated the following:

He had a leak in his roof which was repaired, during the repair [Respondent] stated he had to get a beam replaced in his roof from the water damage. [Respondent] also told him that they would then treat the area with an epoxy sealant. He charged [Complainant] $4800 for the beam and epoxy.

[Complainant] stated when the workers showed up, they went into the attic. [Complainant] stated he did not hear any noise from the attic nor did he see them spray anything in the attic.

I conducted an inspection in the attic of the garage. I did not locate any replaced beams. The trusses were factory trusses and there was no sign of any recent work that would require a beam. There was also no epoxy anywhere in the attic. Lastly, there was no permit pulled for the replacement of a beam from the City of Surprise.

I have reached out to [Respondent] several times by phone, he has not returned my calls.

Investigator Fultz then referred the matter to the Registrar’s Legal Department.

On March 5, 2020, the Registrar issued a Citation against Respondent’s licenses, charging cause to suspend or revoke the licenses under A.R.S. §§ 32-1154(A)(6), 32-1154(A)(8), and 32-1154(A)(16).

Respondent filed a timely written answer to the Citation, denying any statutory violations, stating that he had been attempting to contact Complainant without success, and offering to return Complainant’s $4,800.00. Respondent provided an explanation, in relevant part as follows:

3. I did not intend to “up sell” [Complainant] I made my roof assessment based on the leak they showed me on the inside where they had the hole cut out and what I could see without pulling up the roofing.

4. The gentlemen who no longer works for me [sic] found upon pulling up the roof that there was more wood closer to the edge “the beam” that was effected [sic] and needed to be support [I] shared this info with them explained to them the cost and agreed to do the work, this is where I made my mistake I left to stay ahead of the estimates instead of being more hands on. And asked the gentlemen to take photos He did not and upon inspection I now realize the guy didn’t even do what I asked him. This happened on a couple job [sic] to much smaller degrees and I stopped using him as a helper.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

Due to the COVID-19 pandemic, the Administrative Law Judge issued an order that the hearing would be held telephonically. Complainant filed 10 exhibits before the hearing.

A telephonic evidentiary hearing was held on May 26, 2020. OAH was able to contract Investigator Fultz and Respondent at the numbers provided, but not Complainant because his number was apparently blocked. A further hearing was held via Google Meet on June 2, 2020. OAH sent the order setting the Google Meet further hearing to Respondent at his address of record. Complainant and Investigator Fultz appeared at the further Google Meet hearing, but not Respondent.

Complainant submitted 10 exhibits and testified on his own behalf. Investigator Fultz also testified.

Complainant submitted complaints to the Better Business Bureau and Home Advisor against Respondent from other homeowners that Respondent had failed to perform work after receiving payment.

Investigator Fultz testified that he had searched the Registrar’s database of complaints against Respondent and found Case Nos. 2018-795 and 2020-0596, which both involved complaints from homeowners that Respondent had charged them for work that he did not perform.

Investigator Fultz testified that he consulted the Registrar’s Legal Department and determined that Respondent should be charged with fraud under A.R.S. § 32-1154(A)(6).

Investigator Fultz testified that any replacement or repair of beams in a structure would require engineering and permits, which were beyond the scope of Respondent’s licenses, in violation of A.R.S. § 32-1132(A)(16). He had also charged Respondent with a violation of A.R.S. § 32-1154(A)(8) because Respondent had failed to provide labor and materials for which he had contracted and had been paid.

Complainant testified that Respondent had never refunded the $4,800.00 and that Complainant never refused the refund. Complainant did not trust Respondent and preferred to get the refund through the Registrar’s complaint process. Complainant played into the record a voicemail that Respondent had left in late April or early May 2020, apologizing but stating that he had been unable to attend to the complaint because his wife’s mother had passed, which caused Respondent to be unable to perform the work.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history as shown on the Registrar’s public website on this date. Both of Respondent’s licenses are active and in good standing. No discipline is shown against either license and Complainant’s appears to be the only complaint pending against either license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The order setting the further hearing through Google Meet that was sent to Respondent at his address of record was reasonable and he is deemed to have receive notice of the further hearing to be held through Google Meet.

Complainant bears the burden of proof to establish most causes to suspend or revoke Respondent’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

“‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.” “’Knowingly’ means, with respect conduct or circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.” It has long been the law in Arizona and elsewhere, however, that “ʿ[n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”

Complainant established that Respondent knowingly contracted beyond the scope of its contractor’s licenses when it contracted to repair a beam in Complainant’s roof, thereby furnishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(16).

Complainant established that Respondent took $4,800.00 for work that he did not perform, thereby establishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(8).

Because of the danger that an allegation of fraud poses to a person’s reputation, civil fraud generally must be established by clear and convincing evidence. Clear and convincing evidence is strong evidence that is more than a preponderance, but less than beyond a reasonable doubt, the standard used in most criminal cases.

Respondent admitted in his written answer that he had not performed the work and had not checked to make sure his employee had performed the work, even though the employee failed to provide the photographs of the work that Respondent requested. Respondent also seemed to admit that he did not verify that the work was actually needed. Investigator Fultz and Complainant submitted evidence of multiple instances of the same alleged misconduct by Respondent. Based on this evidence, Complainant established that Respondent committed fraud when he charged Complainant $4,800.00 for work that did not need to be done and that was not done and that, as a result, Complainant suffered injury, furnishing cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(6).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that, fifteen days after the effective date of the final order in this matter, License Nos. ROC 312724 and ROC 317314 of Respondent Danny Patrick Carroll DBA: Weather Guard Improvements shall be suspended.

It is further ordered that if Respondent provides satisfactory written proof to the Registrar that Respondent has paid Complainant Gary Starr $4,800.00 by cashier’s or certified check, the Registrar shall not suspend Respondent’s licenses but shall close Case No. 2020-00008.

It is further ordered that if Respondent provides such written proof after his licenses are suspended, the Registrar shall reinstate the licenses.

It is further ordered that Respondent’s contractor’s licenses Nos. ROC 312724 and ROC 317314 shall be placed on probation for a period of six months after the closure of this complaint or the reinstatement of the licenses, whichever occurs later.

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 five days from the date of that certification.

Done this day, June 16, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors