ALJDEC decisions subject to certification as final

2016A-1802-ROC · Registrar of Contractors · 2016-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andy and Sheila Wong,

COMPLAINANT,

v.

Medwest Engineering LLC dba,

Medwest Builders,

License No: 281826

RESPONDENT.

No. 2016A-1802-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2016

APPEARANCES: Complainants Andy and Sheila Wong appeared on their own behalf. Gurvinder Takhar, Owner, appeared on behalf of Respondent Medwest Engineering LLC doing business as Medwest Builders.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Respondent Medwest Engineering LLC doing business as Medwest Builders (Respondent) is the holder of License No. 281826 issued by the Arizona Registrar of Contractors (Registrar).

Complainants became aware of Respondent when they observed Abdalla Ali Abualbasal, Respondent’s Qualifying Party, working on a one million dollar custom home in their neighborhood and noted Respondent’s information on the van on the site.

On or about July 19, 2013, Andy and Sheila Wong (Complainants) entered into a contract with Abdalla Ali Abualbasal, who presented himself as an employee of Respondent, to install a retaining wall at their home. The contract totaled $24,000.00. The contract had “Medwest Builders” at the top, included Respondent’s address, telephone number, fax number, email address, and License No. On the signature line, the contract had “Midwest Engineering, llcDBA /Medwest Builders / Al Basal.”

On or about May 12, 2014, Complainants signed a new contract with Mr. Abualbasal for the same scope of work as the July 19, 2013 contract for a total contract price of $30,000.00. In all other respects, the contracts provided the same information.

Mr. Wong testified that he signed a contract at Respondent’s address where Respondent’s license was hanging on the wall.

During the course of the project, Mr. Abualbasal gave Complainants a business card for Gurvinder Takhar indicating he was a General Contractor and President of Medwest Builders and provided Mr. Takhar’s cell phone number, office number, fax number, and email address, and Respondent’s address and License No.

From 2014 to the end of 2015, Mr. Abualbasal would appear on the jobsite for a few days at a time and then would not be on the project for months at a time. On at least one occasion, Mr. Wong met Mr. Abualbasal and Mr. Takhar at a gas station project owned by Mr. Takhar to discuss the lack of progress on the project. Mr. Takhar told Mr. Wong that the gas station was behind schedule and Mr. Takhar could not let Mr. Abualbasal go work on Mr. Wong’s project.

On or about May 26, 2016, the Registrar received a Complaint against Respondent from Complainants alleging Respondent abandoned the project. Complainants provided copies of checks purported to be payment for the project. The checks included the following:

Check # Dated Payable to Amount

1014 July 19, 2013 Midwest Engineering LLC $15,000.00

712 June 10, 2014 Medwest Builders $5,000.00

762 November 6, 2014 Medwest Engineering $1,500.00

766 November 14, 2014 Juan Rodriguez $1,000.00

768 November 22, 2014 Juan Rodriguez $1,000.00

1043 November 25, 2014 Abdalla Abualbasal $7,000.00

Total $30,500.00

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 6-30-16.

You are hereby directed to remedy the following violations by the appropriate means:

Respondent shall complete project per original contract agreement, properly executed change orders, and , local building codes.

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 complete the project.

On or about June 24, 2016, an attorney representing Respondent sent Complainants a letter indicating that Complainants had paid a total of $21,500.00 to Midwest Engineering and the rest was paid to individuals, and Respondent was willing to complete the project for the contract balance of $8,500.00.

On June 29, 2016, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(8).

On or about July 21, 2016, an attorney representing Respondent sent Mr. Abualbasal a Demand to Cease and Desist letter demanding that Mr. Abualbasal immediately cease and desist using the name Medwest Builders and falsely representing that he had any authority to perform construction work under Respondent’s license.

A hearing was held on September 8, 2016. Investigator Klein testified as to the Registrar’s standards, the jobsite inspection, and the written directive. Complainants presented their own testimony. Mr. Takhar testified on behalf of Respondent.

Ms. Wong testified that the county had cited them for construction debris that has remained on their property since Mr. Abualbasal left the project. Ms. Wong also stated that the retaining wall needed to meet the county’s code requirements.

Mr. Wong testified that Respondent had not done any work on the project since the end of 2015. Mr. Wong also testified that Mr. Abualbasal introduced him to Mr. Takhar at the gas station on several occasions and Mr. Takhar was aware of Complainants’ project.

Mr. Takhar testified that Mr. Abualbasal was committing a fraud against Complainants. Mr. Takhar pointed out that in various places, the contract referenced Midwest Engineering LLC rather than Medwest Engineering LLC. Mr. Takhar also questioned by Complainants did not contact him directly if they had his cell phone number and email address to confirm that he knew of and agreed to the contract in question. Mr. Takhar stated that he knew nothing about the contract, complaint, or directive until 2016. Mr. Takhar acknowledged that the address on the business card and on record with the Registrar was an office building owned by him, but asserted that he did not visit that office during the time in question. Mr. Takhar stated that he only formed Respondent to be the general contractor for his gas station project upon the advice of Mr. Abualbasal as a way to save money. Mr. Takhar testified that Mr. Abualbasal ended up costing him approximately $1.5 million over the course of the project.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 28, 2016. Such prior License record reflects that Respondent’s License No. 281826 was first issued on October 28, 2012, and was voluntarily cancelled on August 16, 2016. The record also reflects that there was one open complaint pending against the license and one complaint that resulted in discipline.

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 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).

Respondent’s voluntary cancellation of its license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

The weight of the evidence established that Mr. Abualbasal was the Qualifying Party of Respondent at the time the contract was executed. Mr. Abualbasal had an office at Respondent’s address of record; had business cards with Respondent’s name, address, telephone number, and license number; drove a vehicle with Respondent’s name on the side. Therefore, Mr. Abualbasal’s actions may properly be attributed to Respondent.

The evidence established that Respondent did not complete the project after entering into a contract, accepting payment, and performing periodic work on the project. Therefore, Complainant established Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(8).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Medwest Engineering LLC doing business as Medwest Builders’ License No. 281826.

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, September 28, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors