ALJDEC decisions subject to certification as final

2018A-05352-ROC · Registrar of Contractors · 2018-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2018, with the record held open until November 26, 2018 APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Respondent Abba’s Artisans LLC doing business as Bathcrest of Tucson did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. On or about July 2, 2000, the Arizona Registrar of Contractors (Registrar) issued License No. 154666 to Respondent. On or about September 11, 2009, the Registrar issued License No. 258978 to Respondent. Respondent’s address of record for the licenses is 4244 North 16th Place, Tucson, Arizona 85705-1506. 2. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website on December 11, 2018. Such prior License record reflected that Respondent’s License Nos. 154666 and 258978 had no prior complaints that led to discipline or were resolved or settled. Both licenses showed seven open complaints. 3. After the Registrar received six homeowner complaints against Respondent between September 27, 2018, and November 5, 2018, alleging abandonment and failure to meet minimum workmanship standards, the Registrar investigated the homeowner complaints. The Registrar substantiated the homeowner complaints. Under the circumstances, the Registrar found that the public health, safety, or welfare imperatively required emergency action under Ariz. Rev. Stat. § 41- 1092.11(B). 4. On or about November 8, 2018, the Registrar issued, in Case Number 2018-05352, an Order of Summary Suspension & Notice of Promptly Instituted Proceeding (Order) setting an expedited evidentiary hearing to convene at 9:00 a.m. on November 15, 2018, before the Office of Administrative Hearings (OAH), an independent state agency. The Registrar mailed the Order to Respondent’s address of record via certified and first class mail on November 8, 2018. 5. On or about November 9, 2018, the Registrar issued an Order Consolidating Cases in which it ordered the following cases filed by homeowners be consolidated with the Registrar’s Case Number 2018- 05352: Case 2018-04578, filed by Ruslan Rafikov; Case 2018-04736, filed by Cheri L. Darling; Case 2018-04754, filed by David D. Horner; Case 2018-04847, filed by Glee A. McCauley; Case 2018-05094, filed by Daniel Douglas Finley; and Case 2018-05270, filed by Charles L. Flaminio. 6. On or about November 9, 2018, the Registrar issued a Supplemental Notice that set forth additional facts that supported the summary suspension. The Supplemental Notice was also sent to Respondent’s address of record via certified and first class mail. 7. An evidentiary hearing was held on the matters set forth in the Order on November 15, 2018, including 29 charges against Respondent including six counts of abandonment of a contract without legal excuse in violations of A.R.S. § 32-1154(A)(1); five counts of departure from or disregard of plans or specifications or building codes in violation of A.R.S. § 32-1154(A)(2); five counts of violating a rule adopted by the Registrar, namely workmanship as set forth in A.A.C. R4-9-108, in violation of A.R.S. § 32-1154(A)(3); five counts of failure to comply with the Registrar’s statutes, namely the elements of a contract as set forth in A.R.S. § 32-1158(A); six counts of acting in a name other than as set forth on the license in violation of A.R.S. § 32- 1154(A)(14); and two counts of knowingly contracting beyond the scope of the license in violation of A.R.S. § 32-1154(A)(16).[1] 8. Although the start of the duly noticed continued hearing was delayed to allow Respondent additional travel time, Respondent did not appear on its own behalf, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Respondent did not request to appear telephonically, nor did Respondent request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence Homeowner Complaints Case No. 2018-04578 9. On or about May 30, 2017, Respondent entered into a contract with Ruslan Rafikov to perform remodeling work in a bathroom at 13575 S. Sonoita Ranch Cir., Vail, Arizona 85641, for $3700.00. Mr. Rafikov paid Respondent $3700.00 via checks payable to Matt Lerew Remodeling. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. 10. On or about September 27, 2018, the Registrar received a Complaint submitted by Ruslan Rafikov against Respondent’s License Nos. 258978 and 154666 alleging poor workmanship and abandonment. 11. On or about October 19, 2018, Arlo Houston, Investigator with the Registrar, conducted a jobsite inspection at 13575 S. Sonoita Ranch Cir., Vail, Arizona 85641. Respondent did not attend the jobsite inspection. Mr. Houston noted that Respondent had made modifications to the electrical and plumbing during the course of the project. 12. On or about October 30, 2018, the Registrar issued a Written Directive, requiring Respondent to remedy five complaint items by November 16, 2018. Respondent was advised that it was required to ensure that any and all required building permits be obtained from the local building authority prior to making the corrections listed in the directive. 13. On or about October 30, 2018, Mr. Houston issued warning letters to Respondent for performing work outside the scope of its license, using a deficient contract, and failing to obtain building permits. 14. Respondent did not comply with the Registrar’s Directive. Case No. 2018-04736 15. On or about April 27, 2018, Cheri L. Darling entered into a contract with Respondent to perform remodeling work, including altering the plumbing, on a bathroom located at 10691 E. Timeless Dr., Tucson, Arizona 85748, for $11,614.00. Ms. Darling paid Respondent $3700.00 via a check payable to Matt Lerew Remodeling to begin work on the project. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. 16. On or about October 4, 2018, the Registrar received a Complaint submitted by Ms. Darling against Respondent’s License Nos. 154666 and 258978 alleging abandonment. 17. On or about October 29, 2018, Mr. Houston conducted a jobsite inspection at 10691 E. Timeless Dr., Tucson, Arizona 85748. Respondent did not attend the jobsite inspection. Mr. Houston noted that Respondent had not delivered any materials or performed any work on the project for which it had contracted and received payment. 18. On or about October 31, 2018, the Registrar issued a Written Directive requiring Respondent to complete the project by November 19, 2018. 19. On or about October 31, 2018, the Registrar issued a warning letter to Respondent for utilizing a contract that failed to meet the minimum statutory elements. 20. Respondent did not comply with the Registrar’s directive. Case No. 2018-04754 21. On or about May 24, 2018, David D. Horner entered into a contract with Respondent to perform bathroom remodeling work at 8906 N. Cahill Way, Tucson, Arizona 85742, for $10,820.00. Mr. Horner paid Respondent $3500.00 via a check payable to Matt Lerew Remodeling to begin work on the project. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. 22. On or about October 9, 2018, the Registrar received a Complaint submitted by Mr. Horner against Respondent’s License Nos. 154666 and 258978 alleging abandonment. 23. On or about October 11, 2018, John Smith, Investigator with the Registrar, issued a warning letter to Respondent for utilizing a contract that failed to meet minimum statutory elements. 24. On or about October 31, 2018, Mr. Smith conducted a jobsite inspection at 8906 N. Cahill Way, Tucson, Arizona 85742. Respondent did not attend the jobsite inspection. Mr. Smith substantiated abandonment. 25. On or about November 1, 2018, the Registrar issued a Written Directive to Respondent directing it to complete the contract with Mr. Horner. 26. Respondent did not complete the contract with Mr. Horner. Case No. 2018-04847 27. On or about May 11, 2018, Glee A. McCauley entered into a contract with Respondent to perform bathroom remodeling work at 7051 E. 5th St., Tucson, Arizona 85710, for $10,820.00. Ms. McCauley paid Respondent $3400.00 via a check made payable to Matt Lerew Remodeling to begin work on the project. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. 28. On or about October 12, 2018, the Registrar received a Complaint submitted by Ms. McCauley against Respondent’s License Nos. 154666 and 258978 alleging abandonment. 29. On or about November 6, 2018, Mr. Houston conducted a jobsite inspection at 7051 E. 5th St., Tucson, Arizona 85710. Respondent did not attend the jobsite inspection. Mr. Houston found that no materials had been delivered and no work had been done on the project and substantiated abandonment. 30. On or about November 8, 2018, the Registrar issued a Written Directive requiring Respondent to complete the project by November 26, 2018. 31. Respondent did not complete the project. Case No. 2018-05094 32. On or about May 10, 2018, Daniel Douglas Finley entered into a contract with Respondent to perform a bathroom remodeling work at 9854 E. Wind Dancer Dr., Tucson, Arizona 85748, for $15,181.11. Mr. Finley paid Respondent $4500.00 via a check payable to Matt Lerew Remodeling to begin the project. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. 33. On or about October 26, 2018, the Registrar received a Complaint submitted by Mr. Finley against Respondent’s License Nos. 154666 and 258978 alleging abandonment. With the Complaint, Mr. Finley also provided material from the Bathcrest website that referenced Matt Lerew Remodeling. 34. The Registrar determined that Respondent failed to obtain a permit for the project. Case No. 2018-05270 35. On or about March 6, 2018, Charles Louis Flaminio entered into a contract with Respondent to perform a bathroom remodeling project at 12465 N. Echo Valley Dr., Tucson, Arizona 85755, for $6895.00. Mr. Flaminio paid Respondent $2070.00 to begin work on the project. The contract did not provide an estimated date of completion and did not include a statement that the property owner had a right to file a written complaint with the Registrar. Instead of Respondent’s name appearing on the contract, Matt Lerew Remodeling was typed on the contract. 36. On or about November 5, 2018, the Registrar received a Complaint submitted by Mr. Flaminio against Respondent’s License Nos. 154666 and 258978 alleging abandonment. 37. Francine Faminio testified that no materials had been delivered and no work had been completed on the project. CONCLUSIONS OF LAW 1. These matters lie within the Registrar’s jurisdiction.[2] 2. The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.[3] 3. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Nothing suggested that the correspondence sent to Respondent were returned as undeliverable. Thus, Respondent is deemed to have received notice of the continued hearing.[4] 4. The Registrar bears the burden of proof to establish grounds for suspension or revocation of Respondent’s contractor’s license by a preponderance of the evidence.[5] 5. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 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.”[7] 6. The evidence in this matter is undisputed. 7. The record reflects that Respondent abandoned without legal excuse the projects of Mr. Rafikov, Ms. Darling, Mr. Horner, Ms. McCauley, Mr. Finley, and Mr. Flaminio. Therefore, the Registrar established six violations of A.R.S. § 32-1154(A)(1).[8] 8. The record reflects that Respondent departed from or disregarded plans or specifications for Mr. Rafikov’s project. Therefore, the Registrar established a violation of A.R.S. § 32-1154(A)(2).[9] 9. The record reflects that Respondent did not meet minimum workmanship standards as required by A.A.C. R4-9-108 on Mr. Rafikov’s project. Therefore, the Registrar established a violation of A.R.S. § 32- 1154(A)(3).[10] 10. The record reflects that Respondent’s contract with Mr. Rafikov, Ms. Darling, Mr. Horner, Ms. McCauley, Mr. Finley, and Mr. Flaminio failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A).[11] Therefore, the Registrar established six violations of A.R.S. § 32-1154(A)(12).[12] 11. The record reflects that Respondent used the name “Matt Lerew Remodeling” in its dealings with Mr. Rafikov, Ms. Darling, Mr. Horner, Ms. McCauley, Mr. Finley, and Mr. Flaminio. Therefore, the Registrar established six violations of A.R.S. § 32-1154(A)(14).[13] 12. The record reflects that Respondent knowingly contracted beyond the scope of its licenses in the contracts on the projects of Mr. Rafikov and Ms. Darling. Therefore, the Registrar established two violations of A.R.S. § 32-1154(A)(16).[14] 13. The fact that Respondent has shown a pattern of taking deposits and multiple payments on new contracts while previously failing to fulfill existing contracts and that no one appeared at the duly noticed hearing to defend Respondent’s license shows that, at this time, Respondent cannot be regulated. 14. Under the circumstances, the Registrar has established more than ample cause to summarily suspend Respondent’s license. 15. The tribunal holds that revocation of Respondent’s licenses is appropriate and in the best interest of the public. RECOMMENDED ORDER In light of the foregoing facts and conclusions of law, IT IS RECOMMENDED that the Registrar’s November 8, 2018 Order of Summary Suspension of Respondent’s License Nos. 154666 and 258978 be affirmed. IT IS FURTHER RECOMMENDED that on the effective date of the final order in this matter, Respondent’s License Nos. 154666 and 258978 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, December 17, 2018.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] At the conclusion of the hearing, the Registrar withdrew four of the counts of departure from or disregard of plans or specifications or building codes in violation of A.R.S. § 32-1154(A)(2) and four counts of violating a rule adopted by the Registrar, namely workmanship as set forth in A.A.C. R4-9-108, in violation of A.R.S. § 32-1154(A)(3). [2] See Ariz. Rev. Stat. § 32-1154(A). [3] See Ariz. Rev. Stat. § 32-1154(D), which provides that “[t]he 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 licensee, or to render a decision suspending or revoking such a license . . . .” [4] See Ariz. Rev. Stat. §§ 41-1092.04 and 41-1092.05(D). [5] See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary 1220 (8th ed. 1999). [8] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [9] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture 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.” [10] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [11] A.R.S. § 32-1158 provides as follows: A. 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 in writing at least the following information: 1. The name of the contractor and the contractor’s business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction 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. This paragraph does not apply to a person who is subject to and complies with section 12-1365. [12] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [13] A.R.S. § 32-1154(A)(14) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.” [14] A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826