ALJDEC decisions subject to certification as final

2018A-05938-ROC · Registrar of Contractors · 2019-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2019, 8:30 A.M. APPEARANCES: Complainants Mark R. Cockerman Sr. and Joann E. Kennedy appeared on their own behalf; Robert Vela, President, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. RGV Renovations LLC (Respondent), is the holder of License Numbers 272298 and 289042 issued by the Registrar of Contractors (Registrar). 2. On or about December 13, 2018, Mark R. Cockerham Sr. and Joann E. Kennedy (Complainants) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the construction of a room addition at a residence in Queen Creek, Arizona. 3. After an inspection of the job site on December 28, 2018, the Registrar issued a Directive dated December 28, 2018, requiring Respondent to remedy various alleged violations by January 14, 2019, based on the following: Complaint Item 1: “Abandonment – Contractor filed bankruptcy prior to initiating remodel. Paid 28% of total contract price ($21,000 on 8/15/2018)- design, permits, material Design plans completed, permits applied for, no materials delivered. 12/4/2018 contractor notified bankruptcy, no funds returned. (Email attached)” (Complainant is referring to the construction of the 20’ x 40’ Workshop as designated by a separate contract). Verified that no work had been performed. Addendum Complaint Issue Complaint Item 2: “Abandonment – Contractor filed bankruptcy prior to initiating remodel. Paid 40% of total contract price ($66,049 on 8/5/2018)- design, permits, material Design plans completed, permits applied for, only wood door delivered. Verbally told price for wooden door totaled $3,800.00 12/4/2018 contractor notified bankruptcy, no funds returned. (Email attached)” (Complainant is referring to the construction of the Home Extension and Remodel as designated by a separate contract). Verified that no work had been performed. 4. A compliance inspection was performed on February 8, 2019, where it was observed that no corrective work was undertaken. The Registrar then issued a Citation to Respondent on February 14, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. 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 for May 1, 2019, at 8:30 A.M. At the hearing, Complainants Mark R. Cockerham, Sr. and Joann E. Kennedy presented the testimony of Joe Kennedy and Kim Keaveny; Robert Vela, President, and Bob Cason, Managing Partner, testified on behalf of Respondent. Randy Morris, the Investigator, testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 1 - 6.[1] 6. The Investigator on behalf of the Registrar testified as to his communications with Complainants and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified he observed no work performed at the site but saw only some stakes planted. 7. Complainants presented the testimony of Bob Cason of Respondent who stated that he received a check in the amount of $66,049.00 from Joe Kennedy as a down payment for Complainants’ room addition and remodel relating to a contract with Complainants dated July 30, 2018. (Complainants’ Exhibit 2). He further testified that he received a check in the amount of $21,000.00 for the concrete foundation. (Complainants’ Exhibit 3). 8. Joe Kennedy testified on behalf of Complainants as to writing the checks to Respondent in the amount of $66,049.00 and in the amount of $21,000.00 for work to be performed for Complainants that was not performed. 9. Kim Keaveny testified on behalf of Complainants as to work Respondent had contracted to perform for her on an unrelated project. She stated that Respondent abandoned the contract with her without returning the payment she made to Respondent. She stated she filed a Complaint against Respondent with the Registrar of Contractors which culminated in a Final Administrative Decision and Order, dated April 30, 2019, in Case No. 2018A-0601-ROC, wherein Respondent’s License Numbers 272298 and 289042 were revoked to be effective on June 10, 2019. (Complainants’ Exhibit 6). 10. Bob Cason testified on behalf of Respondent that he had just received permits from the project yesterday and that the job was ready to move forward. He admitted that no work had been done on the site to date. He testified further testified that the eight to nine month delay in obtaining permits resulted from a lot of different factors. 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 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:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

… 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. Complainants have presented sufficient evidence to demonstrate that Respondent has refused to proceed with the work and further that Respondent consequently has not performed work in a professional and workmanlike manner. No evidence was presented to rebut Complainants’ evidence or to support a legal excuse for refusal to perform work or a valid justification for not proceeding with corrective work. The Tribunal finds that the delay in obtaining permits was not a valid legal excuse. 7. Complainants have established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), 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 this Order, RGV Renovations LLC’s, License Numbers 272298 and 289042 are revoked. 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, May 21, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings.

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