ALJDEC decisions subject to certification as final

2017A-5282-CHC-ROC · Registrar of Contractors · 2018-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jesus Valenzuela Castillo,

COMPLAINANT,

v.

Roberson Renovations and Custom Cabinetry LLC,

License No. CR61.297303-D,

RESPONDENT.

No. 2017A-5282-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 28, 2018, at 1:00 p.m.

APPEARANCES: Jesus Valenzuela Castillo (“Complainant”) appeared on his own behalf; Roberson Renovations and Custom Cabinetry LLC (“Respondent”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about April 10, 2015, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61.297303-D for dual carpentry, remodeling, and repair to Respondent. Respondent’s address of record is 3445 W. 27th Pl., Yuma, Arizona 85364-6980.

On or about October 18, 2017, Complainant filed a complaint with the Registrar against Respondent alleging eleven specific items of allegedly poor workmanship in Respondent’s performance of its contract to perform substantial remodeling at Complainant’s property at 1314 W. Hillside Place, Yuma, Arizona 85364. According to the complaint, Respondent had started work on November 9, 2015, and stopped work on the project on July 5, 2016.

The Registrar assigned the complaint to its Investigator, Beau Cruz, for investigation. Investigator Cruz performed a jobsite inspection and on November 20, 2017, issued a directive to Respondent to repair nine items on Complainant’s complaint on or before 5:00 p.m. on November 20, 2017, in relevant part as follows:

Complaint Item 1: Kitchen Cabinets incomplete

Install all missing doors, drawers, shelves and one faux drawer fronts under sink(s) and, properly secure countertop for end base cabinet to left of stove.

Complaint Item 2: Floor trim incomplete

Install missing base tiles on both sides of east (E) side entry door leading to the exterior, missing base tile on right (S) side of added right rear bathroom of the addition, missing base tiles on both sides of entry door leading to Laundry Room addition, missing base tiles on east (E) side of bar counter wall between Living Room and Breakfast room, missing base tiles on west (W) side and end of bar counter wall between Living Room and Breakfast room, missing section of baseboard on east (E) side north (N) wall in the Living Room and, missing base between door and vanity cabinet of added right rear bathroom of the addition.

Complaint Item 3: Laundry room incomplete

Install all missing doors, drawer, and faux drawer front under sink missing shelves. Install trim ring and light bulb for west (W) can light fixture and, install dryer vent kit with hood.

Complaint Item 4: Floor tile incomplete

Grout added section of floor tile on east (E) side of bar counter wall between Living Room and Breakfast room, grout added section of floor tile to the right (N) side of Kitchen Island, grout added section of floor tile to the left (S) side of Kitchen Island and, install and secure missing tiles in same area.

Complaint Item 5: Painting incomplete

Finish painting west (W) side and end of bar counter wall between Breakfast Room Living Room and part on north (N) wall of Living Room, the south (S) wall of Living Room and, the east (E) wall of right Rear Bedroom.

Complaint Item 6: Outside door trim incomplete

Install casing trim on exterior of east (E) exit door and, install casing trim on exterior of door leading to the patio.

Complaint Item 9: Damaged Electrical line not repaired

Correct the issue with the exposed electrical wires and damaged PVC electrical conduit in the back yard.

Complaint Item 10: Bathroom Cabinets incomplete

Install missing door, drawers and, faux drawer front under sink for Vanity cabinet on the south (S) side of right rear bathroom.

Complaint Item 11: Plumbing backfill incomplete

Ensure back yard between the storage and the residence is properly backfilled.

After both parties informed Investigator Cruz that Respondent had not performed corrective work to comply with the November 20, 2017 directive, the complaint was referred to the Registrar’s Legal Department. On December 18, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/owner Richard Roberson filed a timely written answer to the Citation, stating Respondent’s license should not be suspended because it under-bid the job because he was friends with Complainant’s son-in-law and that he had quit contracting.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. On January 3, 2018, the Registrar issued a Notice of Hearing, setting a hearing on February 28, 2018, at 1:00 p.m. The Registrar sent the Notice of Hearing to Respondent at its address of record, as well as to 1480 S. 6th Ave., Yuma Arizona 85364..

On February 26, 2018, Mr. Roberson sent an email to OAH, stating in relevant part as follows: “This is to inform you that I will not be able to make the hearing on 02-28-2018 at 1:00 PM. I am out of state working, and I am not contesting this case against me. I am very sorry for the inconvenience I have caused to everyone in this case, especially Mr. Castillo and his family. At this time I have no means to finish this job, and I wish to vacate this hearing.”

An evidentiary hearing was held on February 28, 2018. Investigator Cruz testified.

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

Investigator Cruz testified consisistently with the November 26, 2017 Directive and his jobsite inspection notes.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the public website shows that on March 9, 2017, Respondent’s license was administratively suspended for lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable, and it appears that Respondent actually received notice of the hearing.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the nine specific deficiencies noted in the November 20, 2017 directive, thereby providing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

No evidence was presented that Respondent attempted to comply with the Directive or that Complainant denied reasonable access for Respondent to do so. Therefore, Complainant established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. CR61.297303-D of Respondent Roberson Renovations and Custom Cabinetry LLC shall be revoked.

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 five days from the date of that certification.

Done this day, February 28, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors