ALJDEC decisions subject to certification as final

09F-S0209-ROC · Registrar of Contractors · 2009-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2009; 1:00 p.m. APPEARANCES: Complainant Ms. Elizabeth Thomas represented herself. Respondent ROCA Construction, LLC was represented by Mr. Robert Winenger, owner. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Ms. Elizabeth Thomas filed this Complaint against Respondent ROCA Construction, LLC seeking an Order from the Registrar against Respondent for allegedly taking her $9,000.00 in exchange for the promise to perform stucco work on her residence, which Respondent then never performed. 2. Complainant dealt only with a man by the name of Pedro Pliego who represented himself as an agent and/or employee of Respondent ROCA Construction, LLC. Mr. Pliego produced a printed proposal sheet bearing the name of ROCA Construction, LLC, completed the particular information for the stucco work, signed the document and gave it to Complainant. Complainant gave Mr. Pliego a check for the $9,000.00 made out to ROCA Construction, which Mr. Pliego then cashed at the payor bank. Neither Mr. Pliego nor anyone from ROCA returned to perform the work. 3. This Complaint proceeded to an administrative hearing in the Office of Administrative Hearings. Complainant appeared and testified and so did the owner of ROCA Construction LLC, Mr. Robert Winenger. The parties were amicable and understood each other’s position and there was practically no dispute between them as to what had happened. It is a sad tale of both parties being victimized by Mr. Pliego and one that has already been before the Registrar of Contractors at least once. 4. Basically, Mr. Pliego is an erstwhile employee of Respondent who was fired after having been with Respondent only a short time. When he was fired Mr. Pliego managed to steal business cards, proposal sheets, and copies of Respondent’s corporate records which enabled him to fraudulently portray himself as ROCA Construction, LLC, open a bank account, and victimize unsuspecting consumers and the Respondent. 5. Prior to this case another defrauded consumer brought the virtually same Complaint to the Registrar of Contractors in the case of Yanes and Yanes v. ROCA Construction, LLC, T07-1089. In that case the Registrar dismissed the Complaint on the facts that are materially no different than the facts presented here. Mr. Pliego had fraudulently represented himself as being associated with ROCA Construction, LLC after having been fired by Mr. Wineneger, and then absconded with the Yaneses’ money. 6. As was found in the Yaneses’ case, Mr. Pliego appeared at the hearing. Mr. Winenger, knowing that he was going to appear, arranged for the Pima County Sheriff to have deputies on the scene, and had Mr. Pliego arrested then and there. Unfortunately, Mr. Pliego was again at large when he victimized Ms Thomas. Notice is taken of the other facts in T07-1089. 7. The only culprit in the facts of this case is Mr. Pliego who is contracting without a license. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1902. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.1 and 7. 3. The evidence did prove that Ms. Thomas had been defrauded out of $9,000.00; however, the wrongful or fraudulent actor was Mr. Pedro Pliego individually, not the Respondent. There was no evidence of any abandonment, wrongful or fraudulent act by this Respondent in violation of the cited statutes. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint S09-0209, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, October 9, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826