ALJDEC decisions subject to certification as final
2017A-4361-ROC · Registrar of Contractors · 2018-02-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Gary Repovsch,
COMPLAINANT,
v.
Carlson Brooke Eby dba,
Eby Custom Remodeling and Building,
License No: 235375
RESPONDENT.
No. 2017A-4361-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 7, 2018, 1:00 P.M.
APPEARANCES: Complainants Gary Repovsch and Terrie Repovsch appeared on their own behalf; no appearance was made on behalf of Respondent; John Smith appeared on behalf of Registrar
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Carlson Brooke Eby dba, Eby Custom Remodeling and Building (Respondent), is the holder of License Number 235375 issued by the Registrar of Contractors (Registrar).
2. On or about August 24, 2017, Gary Repovsch and Tessie Repovsch (Complainants), filed a Complaint against Respondent with the Registrar alleging workmanship issues and abandonment in connection with construction remodeling work performed by Respondent at Complainants’ residence at 127 E. Castlefield Circle, Tucson, Arizona.
3. After the Registrar’s inspection of the job site on September 15, 2017, the Registrar issued a Directive, dated September 21, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 10, 2017, as follows:
1. “3 new windows need to be installed.” According to the contract, 2 windows still need to be installed.
2. “New window sill is unfinished.”
3. “No water line to refrigerator installed.”
4. “Pantry door needs to be installed.”
5. “3 ceiling fans need to be installed.”
6. “Wood laminate flooring needs to be installed.”
7. “Bathroom sink needs to be installed.”
8. “Toilet...needs to be installed in bath.”
9. “Bathroom faucet and drain need to be installed.”
10. “Mirror...needs to be installed in bath.”
11. “Bathroom vanity light needs to be installed”
12. “Kitchen faucet and drain need to be installed.”
13. “Disposal and air switch need to be installed.”
14. “Appliances need to be installed.”
15. “Kitchen tile backsplash needs to be installed.”
16. “Door trim needs to be installed and painted.”
17. “Interior doors need to be painted.”
18. “3 sets of French doors need to be installed.” This was explained to be bedroom closet doors.
19. “Closet doors need to be painted.”
20. “Door hardware was to be provided and installed.”
21. “Baseboards were to be painted, and installed.”
22. “Exposed kitchen beam was to be distressed.”
4. When some or all of the foregoing items were not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated October 17, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract without legal excuse for the abandonment);
b. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);
c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and workmanlike manner);
d. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include information in contract);
e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).
5. The Registrar 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 for January 16, 2018, at 1:00 P.M. The Registrar mailed a Notice of Hearing to Respondent on or about December 7, 2017, at its address of record.
6. Thereafter, a Minute Entry – Granting Continuance was issued continuing the hearing to February 7, 2018, at 1:00 P.M., and was mailed to Respondent at its address of record.
7. The original Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The original Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
8. A hearing was held on February 7, 2018, at 1:00 P.M. Complainants Gary Repovsch and Terrie Repovsch appeared and testified by telephone on their own behalf; John Smith, the Registrar Investigator (Investigator), appeared and testified by telephone on behalf of the Registrar. No appearance was made on behalf of Respondent.
9. Although the commencement of the hearing was delayed approximately 25 minutes, Respondent did not appear at any time during the hearing on his own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend his license. Respondent further did not request to appear telephonically nor did he request that the hearing be continued.
10. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified with respect to all the items in the Directive that needed to be corrected. He further stated that a pre-hearing inspection of February 1, 2018, revealed that Complainants had hired a new contractor to correct all of those items
11. The Investigator further testified that the work performed by Respondent was done without a building permit. Specifically, he testified that that the electrical and plumbing work performed by Respondent required a building permit.
12. With respect to the contract between the parties, the Investigator testified that the contract was missing the estimated date of completion and notice of the owner’s right to file a complaint with the Registrar.
13. Complainant Gary Repovsch testified that he hired Respondent to do remodeling work on a home purchased by Complainants and that the original contract amount with Respondent was $29,200.00. As it relates to the Directive, testified that Respondent did not return to correct any of the items in the Directive and that Complainants hired a new contractor to complete the items at a cost in excess of $12,000.00.
14. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On August 24, 2017, Respondent’s License No. B.273090-R was suspended. On November 29, 2017, Respondent’s License No. B.273090-R was voluntarily cancelled. On January 31, 2018, Respondent’s License No. B.273090-R was revoked. The administratively suspended and revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The administratively revoked or cancelled status of Respondent’s license does not deprive Complainants of their 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(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
3. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
4. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
22. 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.
6. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
7. A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:
4. The estimated date of completion of all work to be performed under the contract.
...
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1) for Respondent’s abandonment of a contract without legal excuse for the abandonment. Respondent did not complete the work and there was no evidence presented of a legal excuse therefor.
9. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2). Respondent disregarded the building codes of a political subdivision of the state in violation of A.R.S. § 32-1154(A)(2). The evidence presented at the hearing demonstrated that Respondent performed the work on the project without a required permit.
10. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. There was no evidence presented to contradict the Investigator’s testimony as to the list of deficient items listed in the Directive.
11. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with Chapter 10 of Title 32 of the Arizona Revised Statutes. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the contract between the parties was in excess of $1,000.00 and did not include an estimated completion date or a notice of the owner’s right to file a complaint with the Registrar.
12. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. There was no evidence presented for legal justification for failure to undertake corrective action.
13. Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1), § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Carlson Brooke Eby, dba, Eby Custom Remodeling and Building, License Number 235375 is revoked.
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, February 20, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors