ALJDEC decisions subject to certification as final

2020A-01410-CHC-ROC · Registrar of Contractors · 2020-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Austin Thomas Grizzell,

COMPLAINANT

New Legacy Building and Design Incorporated,

License No. 199643,

RESPONDENT

No. 2020A-01410-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 22, 2020

APPEARANCES: Complainant Austin Thomas Grizzell appeared on his own behalf. Robert Swagerty appeared on behalf of Respondent New Legacy Building and Design Incorporated. Registrar of Contractors Investigator Steven Nelson appeared.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. New Legacy Building and Design Incorporated (Respondent) is the holder of License No. 199643 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about February 15, 2020, Austin Thomas Grizzell (Complainant) entered into a written contract with Respondent for the remodel of a kitchen, master bathroom, hall bathroom and addition of a laundry room.

3. On or about March 20, 2020, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

4. The Registrar assigned the complaint to Investigator Paul Smith. Investigator Smith conducted a jobsite inspection on May 1, 2020. Complainant was present for the inspection. Respondent did not attend the inspection.

5. Investigator Steven Nelson appeared at the hearing in place of Investigator Smith, and testified that Investigator Smith had contacted Respondent’s representative who informed Investigator Smith that he “ran out of money,” had canceled his license, and that he would not be performing any work on the project.

6. Investigator Smith’s notes from the jobsite inspection indicate that only the demolition was complete and some plumbing had begun in the laundry room.

7. A Written Directive was not issued. Instead, Investigator Smith recommended that the Registrar cite Respondent for abandonment of the contract.

8. The Registrar issued a Citation against Respondent, charging Respondent with a violation of A.R.S. § 32-1154(A)(1).

9. A hearing was held on July 22, 2020. Complainant testified on his own behalf and submitted twenty-three exhibits. Robert Swagerty, Respondent’s President, testified on behalf of Respondent.

10. Investigator Nelson testified that Complainant had told him that Respondent admitted to using the monies Complainant paid for the project to pay for back taxes and other items having nothing to do with Complainant’s project. Investigator Nelson testified that funds should be used exclusively for the project for which they were paid, and not for overhead.

11. Complainant testified that the contract price was $79,500.00, and that he paid Respondent $40,000.00. On February 15, 2020, upon signing the contract, Complainant paid Respondent $5,000.00. On February 18, 2020, Complainant paid Respondent $15,000.00 for cabinets. On March 3, 2020, Complainant paid Respondent $20,000.00 at the start of demolition and plumbing.

12. Complainant testified that on March 9, 2020, the demolition began on the interior of the house, and it ceased on March 13, 2020. On March 19, 2020, Complainant met with Mr. Swagerty, and at that time, Mr. Swagerty disclosed to Complainant that he had misused his funds.

13. Mr. Swagerty testified that everything that Investigator Nelson and Complainant presented at hearing was accurate. Mr. Swagerty explained that because other projects cancelled and failed to pay, he experienced “a very bad time” and the business had to close. Mr. Swagerty explained that his debt “became too much” and he could not complete Complainant’s project. Mr. Swagerty admitted full responsibility for abandoning the contract/project.

14. Administrative notice is taken of Respondent’s prior License record on July 22, 2020. Such prior License record reflects that Respondent’s License No. 199643 was first issued on September 22, 2004, and was revoked on June 5, 2020. Such prior License record also reflects that there were seven prior complaints resulting in discipline, three resulting in revocation.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).

3. Respondent’s administratively revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

4. The evidence established that Respondent contracted with Complainant to perform the scope of work delineated in the contract for Complainant’s project and Respondent did not perform that work notwithstanding payment by Complainant. Complainant established that he paid Respondent $40,000.00 toward the project and only the demolition was complete and some plumbing had begun in the laundry room. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 199643.

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 40 days from the date of that certification.

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-137160-45720000Done this day, July 31, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000