ALJDEC decisions subject to certification as final

2015A-625-ROC · Registrar of Contractors · 2016-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2016 APPEARANCES: Complainant Nancy L. Adams appeared on her own behalf. Peymam David Khosbhin, Member, appeared on behalf of Respondent Statewide Professional Contracting LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Statewide Professional Contracting LLC (Respondent) is the holder of License Nos. 272320 and 261458 issued by the Arizona Registrar of Contractors (Registrar). On or about August 29, 2014, Complainant Nancy L. Adams (Complainant) entered into a contract with Chris Acevedo, who presented himself as an employee of Respondent, to remodel a home she had purchased in Scottsdale, Arizona. The contract totaled $36,853.49. Mr. Acevedo had given Complainant a business card indicating he was a Project Manager with Respondent and provided Respondent’s License Nos., Respondent’s address, and two telephone numbers. Prior to entering into the contract, Complainant called the telephone number on the card to ask about Mr. Acevedo and the person who answered stated they knew Mr. Acevedo well. Complainant also checked the Registrar’s website to review Respondent’s license history. Complainant also reviewed Respondent’s status with the Better Business Bureau. During the project, Mr. Avecedo arrived to the worksite in a van licensed to Respondent and with “Statewide Professional Contracting LLC” on the side. On at least one occasion, Peymam Khoshbin, Member of Respondent, was on the worksite and was introduced by Mr. Acevedo as his business partner. Mr. Khoshbin did not correct Mr. Acevedo’s introduction. On October 17, 2015, Complainant was arriving to move into the home when Mr. Acevedo stated the laminate flooring would not be dry for 45 minutes. When Complainant arrived, she observed two women who were using string mops on the laminate floor and were leaving swipe and drag marks in the sealant. Mr. Acevedo stated the women were applying a sealer because Arizona is very dry and the flooring needed a sealer. Complainant tried to remove the sealer with various products recommended by Home Depot and the flooring manufacturer. Complainant was able to find one product that took off the sealant, but it also damaged the finish of the laminate flooring. On or about February 9, 2015, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra issued a written directive to Respondent that provided 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:

1. The wood flooring is not level in several areas within a minimum tolerance of 1/8” in 3’ 2” and/or there are raised joints between planks. Most notably the entry, kitchen, and family room. The entry door will not open fully. 2. The wood floor squeaks in the entry to the office when stepped on 3. The wood flooring had a product applied that is not approved by the flooring manufacturer and left a residue on the surface

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make any attempts to do any corrective work. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). A hearing was held on March 1, 2016. Investigator Gunstra testified as to the Registrar’s standards, the jobsite inspection, and the written directive. Complainant presented the testimony of her husband, John Crowell Adams, who testified as to his interactions with Mr. Acevedo. Mr. Khoshbin testified on behalf of Respondent. Mr. Adams testified that he and Complainant did their due diligence in investigating Respondent before entering into the contract. Mr. Adams stated that no one who answered the phone number on the business card stated Mr. Acevedo was not an employee and could not enter into a contract on its behalf. Mr. Khoshbin testified that at the time of the contract, Mr. Acevedo was not an employee of Respondent. Mr. Khoshbin presented an affidavit from Mr. Acevedo supporting this, but did not present Mr. Acevedo as a witness. Mr. Khoshbin stated that Respondent had sold the van to Mr. Acevedo, and that is why he had the van with Respondent’s name on its side. Mr. Khoshbin did not explain why the van was still licensed to Respondent at the time the Registrar reviewed the complaint. Mr. Khoshbin questioned Complainant’s version of events because Complainant did not have a written contract with Mr. Acevedo and paid him largely in cash. Mr. Khoshbin stated that Respondent had not done any contracting work since 2012. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 21, 2016. Such prior License record reflects that Respondent’s License No. 272320 was first issued on April 19, 2011, and was suspended for non-renewal as of May 1, 2015. The record also reflects that there are two open complaints pending against the license. The prior License record also reflects that Respondent’s License No. 261458 was first issued on December 30, 2009, and was suspended for non-renewal as of January 1, 2016. The record reflects that there are no open complaints pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violation 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). 4. The weight of the evidence established that Mr. Acevedo was either an employee of Respondent or that Respondent knowingly allowed Mr. Acevedo to present himself as an employee of Respondent during the time in question. Mr. Acevedo had business cards with Respondent’s name, address, telephone number, and license numbers; drove a van licensed to Respondent with Respondent’s name on the side; and presented Mr. Khoshbin as his business partner without objection. Therefore, whether Mr. Acevedo was an actual employee or was allowed to present himself as an employee, his actions may properly be attributed to Respondent. 5. The credible testimony established that the work by Respondent was not in compliance with the Registrar’s workmanship standards, Therefore, Complainant established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[1] 6. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Statewide Professional Contracting’s License Nos. 272320 and 261458. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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. Done this day, March 21, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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