FINACT2018A-05747-ROC.pdf

2018A-05747-ROC · Registrar of Contractors · 2019-09-18

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Kelly Jane Black, Case No. 2018-05747

COMPLAINANT, Docket No. 2018A-05747-CHC-ROC v. FINAL ADMINISTRATIVE DECISION AND ORDER Webuildit Construction LLC, License No. ROC 266278, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar

must provide written justification setting forth the reasons for the modification or rejection of each finding of

fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge’s decision, that decision is the final

administrative decision in this case and becomes effective on October 27, 2019.

FINAL NOTE

On page one, paragraph two, line 19, “Patricia Brander Lee” should be replaced with “Kelly Jane

Black.”

On page three, paragraph 10, line 29, “subject” should be removed.

Dated September 17, 2019.

By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class Mail September 17, 2019 to: Respondent Webuildit Construction LLC 661 S Hawes Rd Lot 68 Mesa, AZ 85208 Respondent’s Attorney Dennis A. Sever, Esq. Law Office of Dennis A. Sever PLLC 2826 S Carriage Ln Ste 100 Mesa, AZ 85202 Complainant Kelly Jane Black 3119 E Puget Ave Phoenix, AZ 85028

Copy sent electronically this same date to: Office of Administrative Hearings Roger A. Geddes, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Case No. 2018-05747 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 8.28.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly Jane Black, No. 2018A-05747-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Webuildit Construction LLC, DECISION ROC License: ROC 266278, 285491, RESPONDENT

HEARING: August 8, 2019, 9:00 P.M. APPEARANCES: Complainant Kelly Jane Black appeared on her own behalf; Respondent appeared through Dennis A. Sever, Esq. ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Webuildit Construction, LLC (Respondent), is the holder of License

Numbers 266278 and 285491 issued by the Registrar of Contractors (Registrar).

2. On or about December 3, 2018, Patricia Brander Lee (Complainant) filed

an Unlicensed Complaint Form against Respondent with the Registrar alleging poor work in connection with Respondent’s remodel of a residence for Complainant in Phoenix, Arizona. 3. After an inspection performed by the Registrar on January 25, 2019, the Registrar issued a Directive, dated January 25, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by February 11, 2019, as follows: The Respondent is to obtain the correct permit regarding the work and have the work inspected and approved by the proper

governing authority.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 8.28.2019 ROC LEGAL

4. After being informed by Complainant that Respondent had failed to comply with Directive, the Registrar then issued a Citation to Respondent, dated February 14, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action

without valid justification).

5. The Registrar issued a Notice of Hearing, which was continued to August

8, 2019, at 9:00 A.M. At the hearing, Complainant Kelly Black testified on her own behalf and presented the testimony of David Chapman. Respondent presented the testimony of Robert Gurule, Qualifying Party and Member of Respondent. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 11 and Respondent’s exhibit numbers 1 - 26.1 6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspection of the job site, and

the Directive issued by the Registrar as a result of his observations from his inspection.

He testified further that he confirmed that Respondent had yet to obtain a building permit for the work that had been performed. 7. Complainant Kelly Black testified that her architect, Ned Sawyer, referred Abdul Kabbech to her for remodeling work. She stated Mr. Kabbech gave her a business card reflecting that he was the General Manager of Respondent. (Respondent’s Exhibit 2). She stated she received a bid from him on Respondent’s letterhead from Mr. Kabbech, but never received a signed contract. (Respondent’s

The Tribunal also took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings. RECEIVED 8.28.2019 ROC LEGAL

Exhibit 4). She then stated she proceeded with the work with Mr. Kabbech and that she issued a series of checks for the work in excess of $125,000.00 made payable directly to Mr. Kabbech. (Respondent’s Exhibit 12). She also stated that during the course of the work, Mr. Kabbech referred to Robert Gurule as his supervisor, although she said she did not deal with Mr. Gurule until the majority of the work was completed. She further stated that Mr. Kabbech’s only employees on the job were Omar and Santiago. 8. Ms. Black further testified that when issues with the work arose, Mr.

Kabbech gave her Mr. Gurule’s telephone number. She stated when she called him,

Mr. Gurule stated he knew Mr. Kabbech but had only done some small jobs with him in

the past, but that he was willing to look at the job. She stated Mr. Gurule came to the project on September 10, 2018, for the first time and that he agreed to remedy some of the work issues and pay for roofing issues, but that he ultimately did not follow through. She stated Mr. Gurule later brought a check in the amount of $30,000.00 from Mr. Kabbech to resolve the matter, but a stop payment was later put on that check. 9. David Chapman, Complainant’s husband, testified on behalf of Complainant that they entered into a remodel contract with Respondent in April 2018. When problems arose on the job and he asked to speak to a supervisor, he was given

the telephone number of Mr. Gurule on September 6, 2018. He said that upon calling

Mr. Gurule, Mr. Gurule replied that he worked with Mr. Kabbech on some jobs and would take a look at the project. He stated Mr. Gurule represented that he would take care of some of the items in October 2018, but that he did not follow through. He further stated that he received a letter in November 2018 from Ernest Bustamante, Esq., an attorney purporting to represent both Mr. Kabbech and Respondent. (Complainant’s Exhibit 11). 10. Robert Gurule testified on behalf of Respondent that he did not dispute that there was no building permit issued for the subject project; rather he argued that Mr. Kabbech was unlawfully using Respondent’s license. He stated he met Mr. RECEIVED 8.28.2019 ROC LEGAL

Kabbech 15 to 16 years ago when he was approached by him about doing jobs and he gave him his telephone number. He stated that Mr. Kabbech has never been an employee or general manager of Respondent. He stated that he never saw or authorized business cards or invoices with a logo purporting to be Respondent’s. He also stated that the initial bid included his current telephone number and his outdated mailing address from 15 years ago, but he stated that subsequent addresses and telephone numbers on invoices are different and not his or that of Respondent.

(Respondent’s Exhibit 6, 8). He further stated that Mr. Kabbech was never authorized

to enter into any contracts on behalf of Respondent, including the one with

Complainant. He also stated that he never saw the contract or any checks relating to Complainant, never received any monies from the job, and knew nothing of the job until he received a call from Complainant on September 10, 2018. On that call, he stated that he told Complainant he was not Mr. Kabbech’s supervisor and that he was unaware of Complainant’s project, but that he knew Mr. Kabbech. He stated that he agreed to take a look at the project in an attempt to resolve Complainant’s dispute with Mr. Kabbech, but that he never authorized attorney Bustamante to represent Respondent. He stated he did some cleanup at the project and was reimbursed by Mr.

Kabbech, and that he did so because Complainant would no longer agree to have Mr.

Kabbech do any work. He further stated that he did not know Mr. Kabbech’s workers on the job, Omar and Santiago, and that they were not employees of Respondent.

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 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 RECEIVED 8.28.2019 ROC LEGAL

matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2- 19-119. 3. 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). 4. 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: … 3. Violation of any rule adopted by the registrar. … 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…. 5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. A.R.S. § 32-1154(A)(3). Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s alleged failure to perform the work in a RECEIVED 8.28.2019 ROC LEGAL

professional and workmanlike manner. Respondent did not dispute that it did not obtain a building permit. As stated, Respondent argued that Mr. Kabbech who entered into the contract with Complainant and performed the work did not have the authority to use Respondent’s license and was not acting on behalf of Respondent. The evidence established that Mr. Kabbech was not an employee or general manager of Respondent, did not have the authority to act on behalf of Respondent, and that Mr. Gurule had no knowledge of the project until September 2018 when Complainant called him when the job was almost complete. The evidence was unrefuted that Mr. Gurule and Respondent did not receive any of Complainant’s payments. Complainant’s argument is unpersuasive that Respondent would not have attempted to resolve this matter with Complainant unless it was colluding with Mr. Kabbech. The Tribunal finds Mr. Gurule’s testimony credible that he wanted to satisfy

a customer, albeit not his, and that he desired to resolve a matter that involved his

license. Further, the Tribunal is convinced that Respondent sufficiently cooperated

with the Registrar with respect to unlicensed activity regarding Respondent’s license.

On the other hand, the Tribunal noted that Mr. Kabbech apparently mentioned Mr. Gurule’s name to Complainant during the course of the project, invited Complainant to call Mr. Gurule, and listed Mr. Gurule’s telephone number on the initial bid to the Complainant. Given that Mr. Kabbech in doing so would seem to risk Complainant contacting Mr. Gurule at any time to determine Mr. Kabbech’s status or authority, such actions or disclosures by Mr. Kabbech would appear to be inconsistent with Mr. Kabbech’s unauthorized use of Respondent’s license or not acting on behalf of Respondent. However, such inconsistencies, while troubling, are not sufficient to meet Complainant’s burden of proof. 7. A.R.S. § 32-1154(A)(22). Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). In that the Tribunal finds that Respondent was not RECEIVED 8.28.2019 ROC LEGAL

responsible for the Directive item, consequently Respondent was not obligated to perform any corrective work in that regard. 8. Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and 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, that this case shall be dismissed. 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, August 28, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors