ALJDEC - Licensing
2023A-12538-CHC-ROC · Registrar of Contractors · 2024-03-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shannon Farrell ,
COMPLAINANT
v.
Saguaro Well and Pump LLC
License No. ROC 311282,
RESPONDENT
No. 2023A-12538-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 20, 2024, 1:00 P.M.
APPEARANCES: Complainant Shannon Farrell appeared on her own behalf; no appearance was made by or on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Saguaro Well and Pump, LLC (Respondent), is the holder of License Number 311282 issued by the Registrar of Contractors (Registrar).
2. On or about October 31, 2023, Shannon Farrell (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with a well installation to be performed by Respondent at a residence in Sahuarita, Arizona (“project”).
3. The Registrar performed no inspection nor was a Directive issued, as Respondent’s license was suspended and Complainant advised that Respondent performed no work on the project.
4. Thereafter, the Registrar issued a Citation to Respondent, dated December 1, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
5. The Registrar issued a Notice of Hearing that set a hearing for February 20, 2024, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about January 5, 2023, at its address of record. The Notice of Hearing informed the parties that they “must attend the hearing.”
6. At the hearing, Complainant testified on her own behalf. Gregory Johndrow, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits.
7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, member, manager, employee, attorney, or any other person. Consequently, Respondent did not present any evidence at the hearing to defend against potential disciplinary action being imposed against its license.
8. The Investigator testified on behalf of the Registrar that he performed no inspection because Respondent’s license was suspended and he was advised that Respondent had performed no physical work on the project. He testified further that email correspondence between the parties reflected that on November 15, 2023, Respondent had agreed to refund Complainant’s funds paid to it.
9. As herein relevant to the Citation, Complainant Shannon Farrell testified she entered into a contract with Respondent in early 2023 but that no work was performed on the project. She stated she paid Respondent $38,000.00 in February and March 2023 and Respondent promised to refund the money. She further testified that Respondent has still yet to refund the money, and it has now been over a year that she has been dealing with Respondent.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects the subject license was first issued on February 8, 2017, and is suspended at least as of January 16, 2024. The site also reflects one open case, two disciplined cases, and no resolved/settled cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The suspended status of Respondent’s license does not deprive Complainant of her right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
5. The copy of the Notice of Hearing that the Registrar sent to Respondent at its address of record was reasonable and Respondent is deemed to have received such notices. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
...
7. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no dispute that Respondent did not commence the project, and there was no evidence presented of a valid legal excuse for failing to do so.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Saguaro Well and Pump, LLC’s, License Number 311282 is revoked.
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, March 11, 2024
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
c/o Gregory Johndrow, Investigator
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Saguaro Well and Pump LLC
[email redacted]
Shannon Farrell
[email redacted]
By: OAH Staff