ALJDEC decisions subject to certification as final

2014A-2995-ROC · Registrar of Contractors · 2015-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2015, at 8:00 a.m. APPEARANCES: Richard M. Loewy (hereinafter “Complainant” or “Mr. Loewy”) was represented by his attorney, Timothy Ducer, Esq. 3R Construction Group LLC (hereinafter “Respondent”) appeared through member Rene Rivera (hereinafter “Ms. Rivera”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3), and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of License No. CR61-287484-D issued by the Registrar. Respondent’s License was suspended for nonrenewal on November 1, 2015. This is a residential matter in which on or about September 23, 2013, Complainant contracted with Respondent for the remodeling of Complainant’s residence at 3335 E. Oraibi Dr., Phoenix, Arizona (hereinafter the “residence”). Complainant was dissatisfied with Respondent’s workmanship on his residence and filed a Complaint containing more that contained more than 150 separate complaint items against Respondent with the Registrar on July 24, 2014. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On February 19, 2015, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

The Directive listed over sixty (60) complaint items that required corrective action by the Respondent.

After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s license. On July 8, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

The assigned Registrar Investigator, Steve Klein (hereinafter “Investigator Klein”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Klein stated that he performed his initial onsite inspection on December 14, 2014. Investigator Klein said that Complainant wanted to add additional items to the complaint that Respondent was not aware of and that both parties agreed to have a second onsite inspection in February, 2015, for all of the items in the Complaint. Investigator Klein said that he performed his second onsite inspection at Complainant’s residence on February 10, 2014. Investigator Klein said that he inspected each of the 164 items in the amended complaint. Investigator Klein testified that that during his onsite inspections he observed that some of the construction work performed by Respondent appeared to be amateurish. Investigator Klein said that a written Directive was issued by the Registrar on February 19, 2015. Investigator Klein testified that he performed a Compliance inspection on May 7, 2015. Investigator Klein stated that the items set forth in the written Directive had not been addressed. Investigator Klein said that he performed a prehearing inspection on November 25, 2015. Investigator Klein said that nothing had changed from his original onsite inspection. Investigator Klein’s testimony is found to be credible. Mr. Loewy testified that he was very dissatisfied with Respondent’s construction work. Mr. Loewy stated that he had never denied Respondent access to the residence. Mr. Loewy said that Respondent did not “turn a screw” in response to the Registrar’s Directive. Mr. Loewy acknowledged that he would ask the names of the individuals sent by Respondent to his residence and that he would inquire whether they were Respondent’s employees or subcontractors. Mr. Loewy said that he had sent Respondent repeated emails to try and get the Respondent to return to his residence and complete the construction project. Mr. Loewy’s testimony is found to be credible. Mrs. Arlene Loewy (hereinafter “Mrs. Loewy”) testified that her primary complaint was that the remodeling project on her residence had not been completed. Mrs. Loewy reviewed some of the Complaint items that she considered to be unsatisfactory. Rene Rivera (hereinafter “Mr. Rivera”) testified that Mr. Loewy contacted him for the construction project. Mr. Rivera stated that he informed the Complainant that at that time he was in the middle of obtaining his contractor’s license. Mr. Rivera said that the Complainant was initially very happy with Respondent’s work. Mr. Rivera said that Respondent performed a lot of extra work for the Complainant without charging him. Mr. Rivera said that Complainant asked his employees for their immigration papers which made the employees uncomfortable. Mr. Rivera testified that Complainant tried to give him a tip near the end of the construction project. Mr. Rivera said that he declined the gratuity. Mr. Rivera said that Complainant hired his painter to paint the exterior of Complainant’s residence as a “side project” for the painter. Mr. Rivera said that the parties’ personal relationship deteriorated to the point where Mr. Loewy was never happy. Mr. Rivera said that Respondent would perform corrective work, Mr. Loewy would appear to be satisfied and then Mr. Loewy would indicate that the corrective work was not satisfactory. Mr. Rivera said that Respondent’s employees did not want to work at the Loewy residence. Mr. Rivera said that he tried to do his best. Mr. Rivera acknowledged that some of the items in the written Directive were not up to workmanship standards. Mr. Rivera said that the Directive had not been complied with because Mr. Loewy wanted to know how Respondent was going to perform the corrective work before it was performed. Mr. Rivera said that in May, 2015, he showed samples to Mr. Loewy and that Mr. Loewy said that the matter had to go to “legal.” Mr. Rivera said that Mr. Loewy was insensitive towards Respondent’s employees. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The suspended status of Respondent’s License does not deprive Complainant of his right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint. See A.R.S. § 32-1154(C). 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 a preponderance of the evidence. See A.A.C. R2-19-119. 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). Complainant established by a preponderance of the evidence that the numerous complaint items set forth in the written Directive failed to comply with applicable workmanship standards and that the Respondent had failed to comply with the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32- 1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR61-287484-D of Respondent shall be revoked. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses 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)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, December 16, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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