ALJDEC decisions subject to certification as final

2018A-21-CHC-ROC · Registrar of Contractors · 2019-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2019, 9:00 A.M. APPEARANCES: Complainant Nancy Salta appeared on her own behalf; no appearance was made on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. AZ Contracting Group, LLC (Respondent), is the holder of License Number 303463 issued by the Registrar of Contractors (Registrar). 2. On or about January 3, 2018, Nancy Salta (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with a remodel by Respondent at a residence in Phoenix, Arizona. 3. After an inspection performed by the Registrar on January 31, 2018, the Registrar issued a Directive, dated February 28, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 16, 2018, as follows: Complaint Item 1: Siding: improper installation and unfinished. • Verified poor siding installation. Poor cuts and used corrosive type nails. Complaint Item 2: Unleveled framing & unsquared framing / not plumb • Contractor should repair to assure that openings are structurally sound, plumb, level and properly sized. Complaint Item 4: 2x6 closet / bath framing – was corrected in 1 bathroom • Job should be completed per contract and plans. Complaint Item 5: Window install incorrect. • Respondent shall complete window installation per local building codes and manufacturers installation instructions. Complaint Item 7: Forgot a drain for gas water heater • Respondent shall complete water heater installation per local building codes and manufacturers installation instructions. Complaint Item 8: Improper plumbing – no room for angle stops. • Respondent shall complete plumbing installation per local building codes and manufacturers installation instructions. Complaint Item 9: Subpar and unfinished drywall - wavy ceilings • Verified cracking wavy areas and incomplete drywall installation. Complaint Item 10: No approval of electrical box, no ground rod, incomplete demo • Respondent shall complete electrical per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. Complaint Item 11: Window openings unfinished. • Respondent shall complete window installation per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. Complaint Item 15: Abandoned jobsite – left debris throughout. • Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions. Complaint Item 16: Incomplete electrical, plumbing, doors, siding, windows. • Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions. 4. After Respondent did not complete corrective work, the Registrar then issued a Citation to Respondent, dated March 20, 2018, 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 issued a Notice of Hearing, dated April 11, 2018, that set a hearing for May 24, 2018, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about April 11, 2018, at its address of record. 6. 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.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing. 7. After several continuances, a hearing was set for February 6, 2019, at 9:00 A.M. A copy of the Notice of Hearing was sent to Respondent on or about January 4, 2019, at its address of record. 8. At the February 6, 2019, hearing, Complainant Nancy Salta appeared and presented the testimony of Sue Davidson.[1] 9. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued. 10. Complainant Nancy Salta testified that this was a whole house renovation of a house that was not currently their residence. She stated that Respondent made efforts at corrective work but had not been back in over three months. She further testified that Respondent did not complete Complaint items 2, 10, and 16 in the Directive but completed the remaining Directive items. She also stated she was compelled to install plumbing fixtures, provide electrical and plumbing materials, install doors and baseboards, and relevel the floor. 11. Sue Davidson, co-owner of the house, testified that they were considering making the house their residence. She stated she believed Respondent just gave up in the end and did pay for what it had agreed to pay. . 12. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. The website reflects that Respondent was suspended once in 2017 and twice in 2018 and has four other open cases. 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 revoked status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The 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 license, or to render a decision suspending or revoking such a license . . .”). 3. 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. 4. 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). 5. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D). 6. 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 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. 7. 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.” 8. Complainant has presented sufficient evidence to demonstrate that Respondent has refused to perform work and that with respect to work that Respondent did perform, Complainant has established that such work was not performed in a professional and workmanlike manner. No evidence was presented to rebut Complainant’s evidence or to support a legal excuse for refusal to perform work or to support a valid justification for the failure to complete the corrective work. 9. Accordingly, Complainant has 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). 10. The Tribunal also finds Respondent’s suspension once in 2017 and twice in 2018 and four other open cases to be an aggravating factor in imposing discipline. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, AZ Contracting Group, LLC’s, License Number 303463 is 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, February 26, 2018.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the documents submitted by the Registrar 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