ALJDEC decisions subject to certification as final

2017A-4429-CHC-ROC · Registrar of Contractors · 2018-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jay Gold,

COMPLAINANT,

v.

R Isaac Real Estate and Development LLC,

License No: 297138

RESPONDENT.

No. 2017A-4429-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 29, 2017

APPEARANCES: Complainant Jay Gold appeared on his own behalf. Respondent R Isaac Real Estate and Development LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

R Isaac Real Estate and Development LLC (Respondent) is the holder of License No. 297138 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 23, 2017, Jay Gold (Complainant) signed a contract with Respondent for a renovation project. The total cost of the project was $28,957.81 and Complainant paid a total of $17,000.00 toward the project.

On or about August 28, 2017, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

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 10/13/17.

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, verbal agreements, local building codes and manufacturers installation instructions.

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 attempt to contact Complainant regarding the work to be done. After the deadline in the directive expired, Investigator Klein was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 8:30 a.m. on December 29, 2017. The Registrar mailed copies 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.”

Complainant requested that the hearing be accelerated to December 22, 2017, to accommodate his travel schedule around the holidays, but Richard Isaac, Respondent’s Qualifying Party, objected and indicated he was not available to appear on that date.

On December 28, 2017, Mr. Isaac sent an email to OAH, but did not copy Complainant, that provided, “I’m sorry late notice. I don’t believe able to attend a hearing tomorrow. I have been battling a flu since Tuesday, and don’t feel I’ll be in a condition to attend. Fear I may be contagious as well. Please let me know what I need to do.”

Given that the hearing was scheduled for the following day, Mr. Isaac was notified by OAH staff that he could appear by telephone at the hearing and his request to continue the hearing would be taken up at that time.

The hearing was held on December 29, 2017. Although the start of the hearing was delayed 15 minutes, Mr. Isaac did not appear telephonically as instructed and Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Klein testified that as of December 27, 2017, no additional work had been completed on the project.

Complainant testified that because he lived out of state, he relied on emails, text messages, and other communication from Respondent to keep him up to date on the work being done. Complainant reported that after paying Respondent $14,000.00 to begin work on the project, Respondent sent him information indicating the project was progressing. Complainant stated that he paid Respondent an additional $3,000.00 when Respondent indicated the windows were ready to be ordered.

Complainant stated that in the days prior to the hearing, he was on the jobsite trying to resolve some issues including a construction dumpster that had been left behind when another contractor who had worked on the project with Respondent approached him. That individual reported to Complainant that Respondent had done demo for approximately two days and then had not done any further work on the project. Complainant testified that Respondent had knocked out a wall that was not supposed to be removed and had removed a wall that he had asked to be removed, but that was a load-bearing wall. Complainant stated that vagrants had been living in the home periodically because Respondent did not properly secure the home. Complainant reported that the home is in worse shape now than it was when he hired Respondent and it would take a substantial amount of work to make the home suitable to be sold.

Complainant also asked that the Administrative Law Judge take notice of the numerous judgments entered against Mr. Isaac and/or Respondent in Maricopa County Superior Court including a 2016 judgement for $219,600.00 as evidence that Mr. Isaac and Respondent have a pattern of taking advantage of people.

Administrative notice is taken of Respondent’s prior License record on January 18, 2018. Such prior License record reflects that Respondent’s License No. 297138 was first issued on April 21, 2015, and is current. Such prior License record also reflects that there were no other open complaints or prior complaints against Respondent’s license.

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 established that Respondent abandoned the contract without legal excuse for the abandonment in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent did not attempt to compete the project following the written directive from the Registrar 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).

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. 297138.

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, December 29, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors