ALJDEC decisions subject to certification as final

2018A-2584-CHC-ROC · Registrar of Contractors · 2018-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2018 APPEARANCES: Complainant Alan N. Anderson appeared on his own behalf. Respondent JGL Consulting, LLC did not appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT JGL Consulting, LLC (Respondent) is the holder of License No. KB-1.274797-D issued by the Arizona Registrar of Contractors (Registrar). On or about July 13, 2017, Alan N. Anderson (Complainant) entered into a contract with Respondent for the construction of a freestanding patio (adjacent to the existing home) including the foundation piers, columns, wood and S-tile patio cover, rain gutters, and paint to match home. On or about June 7, 2018, the Registrar received a Complaint (dated May 30, 2018) against Respondent from Complainant alleging poor work and working without a license with respect to the project.[1] Specifically, the Complaint provided as follows: 1) Rain gutters not installed properly 2) Pavers taken from site 3) Flashing wavy and bent

The Registrar assigned the number 2018-2584 to the Complaint and assigned the Complaint to Investigator Steve Klein. After a jobsite inspection on July 17, 2017, Investigator Klein issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32- 1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 8-6-18.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Rain gutters not installed properly - Verified leaks, Respondent agreed to correct[2]

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.[3]

Following the issuance of the written directive, Respondent did not correct the directive workmanship issue. Investigator Klein was notified by Complainant on August 7, 2018 that corrective work had not been performed. On or about August 9, 2018, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). On or about August 24, 2018, Respondent sent an email to the Registrar attaching its written Answer to the Citation.[4] Respondent denied the allegations, indicated that it was a dissolved entity (since “early 2018”), and also indicated that its license had been “revoked long ago.” 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 on October 12, 2918. 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.” At the scheduled time of the hearing, only Complainant and the Investigator were present. Although the start of the hearing was delayed nearly 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Respondent had not requested to appear telephonically and did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license. The Investigator testified that, based on the jobsite inspection, the gutters leak. Complainant testified regarding the presented photographs of the rain gutters, including photographs taken during a water test that demonstrated that the rain gutters are not installed properly. Complainant also presented photographs of the intersections of the existing roof and the patio covers as to the gutters. Administrative notice is taken of Respondent’s prior License record on as of November 1, 2018. Such prior License record reflects that Respondent’s License No. 274797 was first issued on November 15, 2011, and has since been revoked. Such prior License record also reflects that there is one open complaint, four prior complaints resulting in discipline, and four prior complaints that were resolved/settled against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s revoked license does not deprive Complainant of the right to prosecute a complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C). 3. Because the Notice of Hearing was mailed to Respondent’s address of record, Respondent is deemed to have received notice of the scheduled hearing.[5] 4. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 5. The evidence established that Respondent’s work as to the rain gutters was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[6] 6. The evidence established that Respondent did not compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[7] 7. While Complainant referenced other issues at the hearing (the pavers and the flashing), those issues were not within the written directive to be complied with. Because such issues were not properly before the Tribunal to determine, or the Registrar to review and order Respondent an opportunity to correct, the Administrative Law Judge cannot find that Respondent’s work on the project with respect to those issues was not in compliance with the Registrar’s standards. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 274797. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, November 1, 2018

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors HEARING: APPEARANCES: ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

Done this day, November 1, 2018.

/s/ Kay A. Abramsohn Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A second Complaint from Complainant filed on the same day alleged that DiZtinctive DeZigns, LLC (formerly JGL Consulting, LLC) was unlicensed. [2] At hearing, the Investigator testified that, at the jobsite inspection, Respondent had agreed to fix the rain gutters. [3] The Investigator’s jobsite inspection notes indicated that the allegation regarding missing pavers does not implicate workmanship issues and that the allegation regarding flashing was “cancelled” by the Complainant. Administrative Record. [4] Respondent’s written answer was from a person indicating she was the CFO/Owner of DiZtinctive DeZigns, LLC and the answer was signed by that same person as the “former CFO/for [Respondent].” The business address provided therein for DiZtinctive DeZigns, LLC was the same known business address of Respondent. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] 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.” [7] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

-----------------------

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