ALJDEC - Licensing

2022A-11707-CHC-ROC · Registrar of Contractors · 2023-04-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Juddson Jordan Flake,

COMPLAINANT

v.

BRUCE MCAULEY LLC

License No. ROC 338202,

RESPONDENT

No. 2022A-11707-CHC-ROC

2022A-11711-CHC-ROC

2022A-11712-CHC-ROC

2022A-11743-CHC-ROC

2022A-11742-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 28, 2023

APPEARANCES: Complainant Juddson Jordan Flake appeared on his own behalf via Google Meet. Respondent Bruce Mcauley appeared on behalf of Respondent Bruce Mcauley LLC via Google Meet. Registrar of Contractors Investigator Mark Nipp appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

BRUCE MCAULEY, LLC. (Respondent) is the holder of License No. 338202 issued by the Arizona Registrar of Contractors (Registrar).

In April 2022, Juddson Jordan Flake (Complainant) contracted with Respondent, through Complainant’s insurance company, to have Respondent repair the roofs on five separate homes.

Complainant paid $1,250.00 for each roof and the insurance company paid the remainder on each roof to Respondent.

In December 2022, the Registrar received a Complaint on each house claiming that Respondent abandoned the project.

The Registrar assigned the complaints to Investigator Mark Nipp.

On January 27, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(16).

On or about February 21, 2023, Respondent e-mailed an Answer to the Registrar.

On or about February 15, 2023, a Notice of Hearing was issued setting a hearing on March 28, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Nipp testified as to the Registrar’s involvement and the above timeline.

Investigator Nipp testified that he reviewed all five complaints and their invoices. On all five complaints he found that the invoices did not meet the minimum elements of a contract as they were missing Respondent’s license number, the advance deposit amounts, the progress payment amounts and the “right to file” language. Further on all five complaints, Investigator Nipp testified that Respondent performed no work and abandoned the projects.

Finally, Investigator Nipp testified that in all cases but for the McDonald property, Respondent contracted outside of the scope of his license, as he charged more than $5,000.00 for each roof.

Complainant testified on his own behalf and offered 15 exhibits into evidence.

Complainant testified that the insurance adjuster, UNI Public Adjusting Services, engaged Respondent to perform the work. Complainant testified that on all jobs he paid Respondent $1,250.00 each. He also testified that it was his belief that UNI paid the remaining amounts on each house.

Complainant testified that Respondent did not start or complete the work. Complainant also testified that Respondent refunded the $1,250.00 deposit on the McDonald house.

Finally, Complainant testified that he simply wanted his money back he paid on the deposits, as well as whatever insurance monies Respondent was paid.

Respondent testified that while he refunded $1,250.00 for the McDonald property, he was not refunding any further money. Respondent also testified that he finished three of the roofs, but did not state which ones, and received the insurance funds on four out of the five projects.

Administrative notice was taken of Respondent’s prior License record on April 13, 2023. Such prior License record reflected that Respondent’s License No. 338202 was first issued on May 13, 2022, and reflected that the open complaints, were the present complaints.

CONCLUSIONS OF LAW

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

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 Vazzano 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).

The preponderance of the credible evidence established that Respondent abandoned four of the projects violation of A.R.S. § 32-1154(A)(1). As to the McDonald roof in complaint 2022A-11711-CHC-ROC, Respondent refunded Complainant’s deposit and did not receive funds from the insurance company to complete that roof. There was no persuasive evidence presented that the remaining roofs were completed.

The preponderance of the evidence established, that the invoices presented did not meet the minimum elements of a contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158, as they did not contain Respondent’s license number, the amounts for the advance deposits and progress payments, and the right to file language.

Finally, the evidence established Respondent contracted outside the scope of his license on all complaints but for 2022A-11711-CHC-ROC. Complaint 2022-11707 had an invoice for $10,614.92, Complaint 2022-11712 had an invoice for $12,362.00, Complaint 2022-11742 had an invoice for $6,886.47, and Complaint 2022-11743 had an invoice for $13,796.11. Respondent only had an R-62 license which limited it to projects $5,000.00 or less. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 338202 for a period of fifteen days.

It is further recommended that Respondent provide a sample written contract which complies with A.R.S. § 32-1158 on or before thirty days following the effective date of the Registrar’s final order. If Respondent fails to provide the same, the Registrar may revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless and until Respondent provides the updated contract.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, April 13, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

BRUCE MCAULEY LLC

19122 W Susan Ave

Casa Grande, AZ 85122

[email redacted]

Juddson Jordan Flake

3091 E San Pedro Ct

Gilbert, AZ 85234

[email redacted]

By: OAH Staff