ALJDEC decisions subject to certification as final

2017A-3520-CHC-ROC · Registrar of Contractors · 2017-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carla S. Jetton,

COMPLAINANT,

v.

Cameron Wayne Ashley dba,

Nexus Construction,

License No: 299839

RESPONDENT.

No. 2017A-3520-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 8, 2017

APPEARANCES: Complainant Carla S. Jetton appeared on her own behalf. Respondent Cameron Wayne Ashley doing business as Nexus Construction did not appear at the hearing.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Cameron Wayne Ashley doing business as Nexus Construction (Respondent) is the holder of License No. 299839 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 29, 2017, Carla S. Jetton (Complainant) entered into a contract with Respondent for, among other things, the staining of 19 interior doors. The total agreed upon contract price for the labor was $1380.00. Complainant purchased the doors and materials to complete the project for a total of $3344.00 extra.

On or about July 11, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz 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 August 26, 2017.

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

License #299839 issued to Cameron Wayne Ashley DBA: Nexus Construction, was suspended for Lack of Bond on 08/07/2017, and cannot do or sub-contract the following corrective work and, the only remedy under this license status, if appropriate, would be financial settlement.

License # 299839 issued to Cameron Wayne Ashley DBA: Nexus Construction is classification # A-11 Steel and Aluminum Erection and is not appropriate to complete the work listed below. Work must be completed by an appropriately licensed contractor(s) hired by complainant and respondent is to pay complainant so that complainant may pay contractor(s) or, the only other remedy under this license status if appropriate, would be financial settlement.

Complaint Item 3: Contractor’s employees poorly painted doors and they need redone.

Paint finish on front and back of front right bedroom door is not consistent and is mottled, paint finish on front and back of right rear bedroom closet doors door is not consistent and is mottled and, right door finish is flat, paint finish on front and back right rear bedroom entry door (not installed and resting against south (S) wall) is not consistent and is mottled and, finish is flat, paint finish on front and back of guest bathroom (one with urinal) is not consistent with flat areas and areas with sheen, paint finish on doors (not installed and resting against south (S) rear wall of garage) is not consistent and is mottled and, finish is flat, paint finish on front and back of master bedroom closet doors door on east (E) side of entry are not consistent and are mottled and, finish of both is flat, paint finish on front and back of master bedroom entry door and closet doors door on west (W) side of entry are not consistent and are mottled and, finish of both is flat and, paint finish on front and back of front master bathroom door is not consistent and is mottled with numerous flat areas throughout surface of door.

Paint on frosted glass panels of south (S) hallway closet doors.

Complaint Item 7: Contractor has not responded to requests to replace warped doors.

Front bedroom door entry door binds or rubs against jamb and failed to mortise door jamb for the hinges and, installed hinges on unmortised door edge and damaged door edge above top hinge. (Doors should clear 1/8" at top and sides.)

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 made no effort to contact Complainant and did not respond to Complainant’s text message seeking information regarding the corrective work. After the deadline in the directive expired, Investigator Cruz was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22) and referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on November 8, 2017, at 8:30 a.m. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

A hearing was held on November 8, 2017. Complainant testified on her own behalf.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed more than 30 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Cruz testified that Respondent’s license did not permit it to perform the work at issue in the complaint. Investigator Cruz related his findings during the jobsite inspection as to the workmanship issues. Investigator Cruz also stated that during the prehearing inspection, nothing had changed as to the condition of the project.

Complainant testified that she originally responded to an ad Respondent had posted on Facebook for a custom barn door. Because Respondent was located some distance from Complainant’s home and wanted to make the “worth it,” Respondent asked if there was any additional work at her home that Complainant might need done. Complainant inquired as to Respondent’s ability to stain and install the doors. Respondent indicated he was capable of performing the work and the parties agreed on a price. Complainant was to provide the doors and all materials and Respondent would perform the work. Complainant signed a bid from Respondent printed on a “Nexus Construction” invoice, which Respondent kept. When Respondent started to do the whitewashing effect on the doors, it did not look as Complainant wanted and she asked that they just paint the doors instead. Once they were painted, Complainant had her handyman install the doors in the house. Upon seeing the doors in the lighting, Complainant noted numerous issues with the coverage and finish on the doors. Complainant contacted Respondent regarding the issues. After Respondent acknowledged the doors were not finished properly, Respondent took the doors down, sanded, repainted, and rehung the doors. Complainant noted the same problems existing after Respondent attempted to correct the issues. After not getting any further responses, Complainant filed the complaint with the Registrar. After the written directive was issued, Respondent made no attempt to contact Complainant and did not respond to Complainant’s text message.

Complainant also testified that Respondent told her that this was a side job that he was not doing under his Registrar’s license, but that Respondent later indicated on Facebook that he was seeking a new license from the Registrar that would enable him to perform the carpentry type of work at issue in this matter.

Administrative notice is taken of Respondent’s prior License record on November 9, 2017. Such prior License record reflects that Respondent’s License No. 299839, A-11 Steel and Aluminum Erection, was first issued on June 22, 2015, and was suspended from August 22, 2016, through August 24, 2016, as the result of discipline, and has been suspended since August 7, 2017, for a lack of bond. Such prior License record also reflects that there was one prior complaint that was resolved/settled/withdrawn, one prior complaint that resulted in discipline, and one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s administratively suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

The evidence established that the work at issue was beyond the scope of Respondent’s A-11 Steel and Aluminum Erection license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 299839.

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, November 9, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors