ALJDEC decisions subject to certification as final

2017A-6192-CHC-ROC · Registrar of Contractors · 2018-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sheri Blommer,

COMPLAINANT,

v.

American Construction Builders & Design LLC dba, Trevizo General Contractor,

License No: 225441

RESPONDENT.

No. 2017A-6192-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 4, 2018

APPEARANCES: Complainant Sheri Blommer appeared on her own behalf. Respondent American Construction Builders & Design LLC doing business as Trevizo General Contractor did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

American Construction Builders & Design LLC doing business as Trevizo General Contractor (Respondent) is the holder of License No. 225441 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 10, 2017, Sheri Blommer (Complainant) entered into a contract for the purchase of a property located in Mesa, Arizona. As a part of the contract, certain issues identified in Buyer’s Inspection Notice and Seller’s Response (BINSR) were required to be addressed. As a result, Respondent was contracted to, among other things, replace the main water shut off valve, secure piping on rear hose bib, replace front hose bib, install anti-siphon on irrigation system, secure water heater access panel, replace corroded water heater shut off valve, repair loose kitchen faucet, and replace the cold water line in the bathroom.

On or about December 14, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. Specifically, the Complaint provided as follows:

Replace main water shut off – remove the redundant system

Properly secure hose bib on back of house

I could no longer wait so paid to redo front hose bib/water main

I lost tree and 9 bushes and grass due to faulty work.

The Registrar assigned the complaint to Investigator Steve Nelsen. After a jobsite inspection, Investigator Nelsen 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 notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 2, 2018.

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

Hose bib on back of home is loose.

***Jobsite reminder not governed by this Directive***

Respondent agreed to reimburse homeowner for repair to caulking around kitchen faucet and replacement of faucet in bathroom.

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 did not correct the loose hose bib on the back of the home. After the deadline in the directive expired, Investigator Nelsen was notified no corrective work had been performed.

ON or about February 6, 2018, 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); and A.R.S. § 32-1154(A)(22).

On or about February 8, 2018, Complainant sent an email to the Registrar including an “updated form and all supporting paper work.” The attached complaint identified the issues as follows:

Properly secure rear hose bib

Repair/Replace kitchen sink faucet loose doesn’t move freely

Repair cold water line

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 on May 1, 2018. 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.” At the time of the hearing, the parties reached a tentative settlement of the issues presented. Therefore the matter was continued pending the execution of the settlement.

The Office of Administrative Hearings was notified that the settlement fell apart and a hearing was necessary. The Office of Administrative Hearings then set the hearing for September 4, 2018. On July 26, 2018, a Minute Entry Continuance was issued to the parties and was sent to Respondent at its address of record.

The hearing was held on September 4, 2018. 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 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Complainant testified that she had multiple other issues that had not been addressed through the complaint process including the hose bib, the kitchen faucet, the front door, and the bathroom faucet.

Administrative notice is taken of Respondent’s prior License record on September 21, 2018. Such prior License record reflects that Respondent’s License No. 225441 was first issued on October 25, 2006, and has been voluntarily cancelled. Such prior License record also reflects that there were two open complaints, one prior complaint resulting in discipline, and three prior complaints that were resolved/settled/withdrawn against Respondent’s license.

CONCLUSIONS OF LAW

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

The copy of the Minute Entry Continuance that the Office of Administrative Hearings 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).

Respondent’s voluntarily 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).

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 as to the rear hose bib 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).

While Complainant presented other workmanship issues at the hearing, those issues were not properly presented to the Registrar in the original Complaint, at the time of the inspection, during the time frame that the written directive was to be complied with, or prior to the Citation. Because the issues were not properly before the Registrar to review and order Respondent an opportunity to correct the issue, the Administrative Law Judge cannot find that Respondent’s work on the project with respect to those items was not in compliance with the Registrar’s standards. Should Complainant wish to pursue those items further, they should be presented to the Registrar in a separate Complaint.

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. 225441.

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, September 21, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors