ALJDEC decisions subject to certification as final

2018A-2102-CHC-ROC · Registrar of Contractors · 2018-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2018 and December 13, 2018. APPEARANCES: Complainant Joy Oberholtzer appeared on behalf of herself. No one appeared on behalf of Respondent Ramos Family Concepts, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On August 14, 2018, the Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on October 4, 2018 at the Office of Administrative Hearings in Phoenix, Arizona. [1] 2. Respondent Ramos Family Concepts, Inc., (“RFC”), holds license 299524 issued by the Registrar. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, the Registrar alleges that RFC may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32- 1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke RFC’s license.[2] 5. In June of 2017, Complainant Joy Oberholtzer entered into a construction contract with RFC wherein RFC would remodel Ms. Oberholtzer’s home. See Exhibit 12. The estimated date of completion was 12-14 weeks from the start date. See id. 6. On or about August 8, 2017, RFC began work on Complainant’s home. 7. On or about May 10, 2018, the Registrar received a Complaint from Ms. Oberholtzer alleging that RFC performed poor work in the construction of her home. 8. On or about May 23, 2018, Registrar Investigator Steve Nelsen, (hereinafter “Investigator Nelsen”), conducted a job-site inspection in response to the Complaint. Investigator Nelsen’s job-site inspection notes provided, in relevant part, as follows: Met both parties at site, there appears to be an issue with project completion within the contracted time. Several inspections have been failed, but the Respondent called the City of Phoenix inspector and she stated that the notes were not updated correctly and that he could proceed. Pre-drywall and shear appears to have been passed for the main residence, the Casitas is still awaiting plan submittal and approval. Both parties agreed to a timeline completion of July 3rd.

9. On May 23, 2018, Investigator Nelsen issued a Directive to RFC. The Directive provides, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Complete the project as per contract, including the compliance of all local building codes, inspections and permitting.

10. Through the Directive, the Registrar ordered RFC to remedy the alleged violations by appropriate means no later than July 3, 2018. 11. RFC did not remedy the alleged violations by July 3, 2018. 12. After the Registrar issued a Citation against RFC on July 25, 2018, RFC filed a timely response. 13. At hearing, Ms. Oberholtzer testified that RFC never completed the project and that RFC’s work failed to meet minimum workmanship standards. 14. RFC did not appear at the hearing and did not filed a request to appear telephonically.[3] Although the start of the duly noticed hearing was delayed twenty-five minutes to allow RFC additional travel time, RFC did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, RFC did not present any evidence to defend its license. 15. Administrative notice is taken of Respondent’s prior License record on December 19, 2018. Such prior License record reflects that Respondent’s License No. 299524 was first issued on June 22, 2015, and is active. Such prior License record also reflects that one prior complaint resulted in the suspension of Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat. section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154. 2. 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). 3. The preponderance of the evidence shows that Respondent’s work failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108). 4. The preponderance of the evidence shows that Respondent failed to comply with the May 23, 2018 Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22). 5. Because RFC has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), its license could be suspended or revoked. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Ramos Family Concepts, Inc. No: 299524 for three days. 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, December 13, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing began on October 4, 2018. The hearing was continued and set for a status update to allow the parties additional time to resolve the matter. After Complainant informed the tribunal that the parties were unable to resolve the matter, the hearing was continued to December 13, 2018. [2] The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] Respondent filed a request to continue the hearing one day before the date of the hearing. Respondent was expected to appear at the hearing and failed to appear. The request to continue was denied on the day of the hearing.

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