ALJDEC decisions subject to certification as final

2016A-1981-ROC · Registrar of Contractors · 2017-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

GSI Fund I, LLC,

COMPLAINANT,

v.

Sequoia Development, Inc.,

License No: 132999, 138304, 132998, and 138305

RESPONDENT

No. 2016A-1981-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 9, 2016

APPEARANCES: Imran Mirza, Owner, appeared on behalf of Complainant GSI Fund I, LLC. Respondent Sequoia Development, Inc. was represented by Robin Dugas.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 132999, 138304, 132998, and 138305 to Sequoia Development, Inc. (Respondent).

On or about May 14, 2015, Holistic Patient Wellness Group, LLC entered into a contract with Respondent for work relating to the building of a grow house at 2426 S. 24th Street, Phoenix, Arizona for a total contract price of $134,685. GSI Fund I, LLC (Complainant), a party to a joint venture agreement with Holistic Patient Wellness Group, LLC.

After entering into the contract, Respondent began working on the project. Sean Shoucair, Respondent’s Owner and Qualifying Party, was regularly on the project site until he went on a scheduled vacation on December 17, 2015. While on vacation, Mr. Shoucair was in regular contact with employees on the project.

On or about January 7, 2016, the City of Phoenix conducted a final inspection and issued a Certificate of Occupancy.

On or about January 8, 2016, Andy Bhakta, an Owner/Party of Holistic Patient Wellness Group, LLC, sent Respondent a text message that provided as follows:

This is a 7 day notice for your termination. You and your company has disappeared for 3 weeks.

Since December 17 until now we have not seen do your work and not being on the site.

You have left many things unattended and has cost us so much money and time.

You are not allowed in the building at all and it seems that you have taken all your items on December 17, 2015.

On or about June 8, 2016, Complainant filed a complaint with the Registrar against Respondent alleging poor workmanship and abandonment. The complaint includes a statement that Complainant had spent $2,000.00 to repair the faulty work.

On or about June 14, 2016, Investigator Jack Grimm contacted Complainant to determine the status of the repairs. Complainant indicated everything had been repaired because Respondent was unresponsive to Complainant’s requests. Because all the items were repaired by others, Investigator Grimm did not perform a jobsite inspection.

To conclude the matter, Investigator Grimm submitted a pencil cite for failure to comply with A.R.S. § 32-1154. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

During the hearing, Imran Mirza, Complainant’s Owner, testified that Respondent had stopped showing up on the jobsite in December 2015. Mr. Mirza stated Complainant had to hire the electrician, Kimbaugh Electric, to complete work Respondent had failed to perform.

Mr. Shoucair testified that Complainant had hired and paid Kimbaugh Electric for work prior to the stop work notice being issued to go around Respondent and cut costs. Mr. Shoucair stated he was in regular contact with the employees on the jobsite while he was on vacation. Mr. Shoucair also testified that he arranged for the final inspection on January 7, 2016.

The bank records Complainant submitted to the Registrar with its complaint included three copies of checks payable to Kimbaugh Electric written in September and October 2015.

Administrative notice is taken of Respondent’s prior license records as reflected on the Registrar’s public website on January 23, 2017. Such prior License record reflects that Respondent’s License Nos. 132999, 138304, 132998, and 138305 were voluntarily cancelled on August 29, 2016, has had no prior discipline, and has no other pending complaints against them.

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 violations 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).

The evidence at hearing established that Respondent was on the jobsite until Complainant issued a stop work notice on January 8, 2016, the day after the City of Phoenix conducted a final inspection and issued a Certificate of Occupancy. Therefore, Complainant did not prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by GSI Fund I, LLC.

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, January 23, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors