ALJDEC decisions subject to certification as final

2020A-00495-CHC-ROC · Registrar of Contractors · 2020-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dianna S Phelan,

COMPLAINANT

T and S Roofing LLC,

License No. ROC 272850,

RESPONDENT

No. 2020A-00495-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 8, 2020

APPEARANCES: Thomas Schoaf, Esq. for Complainant; Tim Worth for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 8, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 8, 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 T and S Roofing LLC on March 27, 2020, and that T and S is alleged to have violated Ariz. Rev. Stat. section 32-1154(A)(1).

Respondent holds license number 272850 issued by ROC. Timothy Worth is T and S’s qualifying party. Mr. Worth appeared and testified for T and S.

Complainant is Dianna S Phelan. Ms. Phelan was represented by counsel at the hearing and presented the testimony of Ralph Watkins.

Ms. Phelan asserts that she hired T and S to repair the roof at her home. T and S asserts that it did not enter a contract with Ms. Phelan, but rather that Ms. Phelan hired Taylor Blankenship who falsely represented that he was an employee of T and S’s.

Although there is some ambiguity in the record, Mr. Blankenship is Mr. Worth’s son-in-law or the partner/significant other of Mr. Worth’s daughter.

ROC received from Ms. Phelan a complaint against T and S and assigned Dennis Bierma to investigate.

Mr. Bierma confirmed that the work at issue had not been completed.

Although Respondent informed Mr. Bierma that Mr. Blankenship, and not T and S, had entered the contract with Ms. Phelan, after reviewing text messages between Mr. Worth and Mr. Blankenship, ROC determined that T and S was responsible for the work.

On March 27, 2020, ROC issued to T and S a citation alleging that it may have violated Ariz. Rev. Stat. section 32-1154(A)(1).

T and S filed an answer to the citation asserting that it had not contracted with Ms. Phelan, and that T and S had been told that she contacted Mr. Blankenship through Facebook where he was advertising for work.

At the hearing, Mr. Watkins testified that he was present when Ms. Phelan and Mr. Blankenship met at her house. When he asked Mr. Blankenship if he was licensed, Mr. Blankenship represented that he worked for his father-in-law and provided T and S business cards.

After the parties discussed the project, Mr. Blankenship went outside stating that he had to make a call to the owner to discuss the price.

Mr. Blankenship returned and reported that he had approval and Ms. Phelan signed a contract.

Because the agreement called for Ms. Phelan to receive credit for lumber that was to be purchased, which would affect the final price, Mr. Blankenship did not provide her with a copy of the contact.

Ms. Phelan gave to Mr. Blankenship a cashier’s check for $4777.00 that was made out to him. Ms. Phelan also paid to Home Depot $469.19 for wood for the project that was picked up by Mr. Blankenship.

Mr. Blankenship cut back the existing fascia boards, but little or no other work was done.

At some point, Mr. Watkins called Mr. Worth in an effort to get a refund for Ms. Phelan. According to Mr. Watkins, Mr. Worth stated that Mr. Blankenship had the money, that Mr. Worth had received a copy of the contract from Mr. Blankenship, and that although he had the materials, he stated that he would not provide those materials to Ms. Phelan.

Mr. Worth testified to the effect that Mr. Blankenship never worked for T and S, T and S had not entered a contract with Ms. Phelan, and Ms. Phelan had refused T and S’s services before she hired Mr. Blankenship.

In evidence are text messages between Mr. Worth and Mr. Blankenship. These messages show: Mr. Worth stating that he did not have enough foam and asking if Mr. Blankenship had written “it” up and received half down; Mr. Blankenship asking how much we need to get; Mr. Worth responding that it was $4000 for all material plus the cost of wood; Mr. Blankenship stating that she had given him $777 [sic], which was half, and that she was paying for the wood herself, and then asking if he could keep some of the money; Mr. Worth stating that he needed Mr. Blankenship to get the fascia boards up so that he could foam as soon as possible and the money was going to be used for a vehicle for Shea.

At the hearing, Mr. Worth took the position that the texts about money were related to a debt that Mr. Blankenship owed for a vehicle.

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.

The text messages between Mr. Worth and Mr. Blankenship show that T and S had knowledge of, and was involved in, the contract to replace the roof at Ms. Phelan’s house. Mr. Worth’s testimony to the contrary is not credible.

The preponderance of the evidence shows that T and S violated Ariz. Rev. Stat. section 32-1154(A)(1).

Because T and S has violated Ariz. Rev. Stat. section 32-1154(A)(1), ROC has authority to discipline its license.

Considering the facts and circumstances of this matter, T and S’s license should be suspended until ROC receives proof that it has paid to Ms. Phelan restitution totaling $5273.19. 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 the Registrar of Contractors suspend T and S Roofing LLC’s license number 272850 until such time that the Registrar receives proof that Respondent has paid to Complainant Dianna S. Phelan $5273.19 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, June 25, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000