FINACT2018A-4143-CHC-ROC.pdf

2018A-4143-ROC · Registrar of Contractors · 2019-06-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Shelby Rae Fletcher, Case No. 2018-4143 COMPLAINANT, Docket No. 2018A-4143-CHC-ROC v. Platinum Preservations LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 292429, AND ORDER 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.

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 hereby accepts

it.

CONCLUSION

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 July 10, 2019.

Dated May 31, 2019.

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

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail May 31, 2019 to: Respondent Platinum Preservations LLC 7820 W Pinnacle Peak Rd Peoria, AZ 85383 Complainant Shelby Rae Fletcher 8153 W Cielo Grande Peoria, AZ 85383 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge

Case No. 2018-4143 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.16.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shelby Rae Fletcher, No. 2018A-4143-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Platinum Preservations, LLC, ROC License: ROC 292429, RESPONDENT.

HEARING: May 2, 2019 APPEARANCES: Complainant Shelby Rae Fletcher appeared on behalf of herself. No one appeared on behalf of Respondent Platinum Preservations, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On March 11, 2019, the Registrar of Contractors, (“Registrar”), issued a NOTICE OF HEARING setting the above-captioned matter for hearing at 8:30 a.m. on May 2, 2019, by the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Respondent Platinum Preservations, LLC (“Platinum”) appeared at the scheduled time and the matter was convened in its absence at about 8:45 a.m. on March 2, 2019. 3. Platinum holds license number 292429 issued by the Registrar. 4. Russell Ferguson, Jr. is Platinum’s qualifying party. 5. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and COMPLAINT. 6. Through the CITATION, the Registrar alleges that Platinum may have violated ARIZ. REV. STAT. section 32-1154(A)(1); ARIZ. REV. STAT. section 32-1154(A)(3) (specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. section 32-1124(B); ARIZ. REV. STAT. sections 32-1154(A)(12) and (A)(22).

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.16.2019 ROC LEGAL

7. The CITATION shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Platinum.

8. On or about July 11, 2018, Platinum and Complainant Shelby Rae

Fletcher entered into a residential construction contract wherein Platinum would

remodel Ms. Fletcher’s home for $9,000.

9. On or about July 12, 2018, Platinum began work on Ms. Fletcher’s home.

10. On or about August 22, 2018, Platinum stopped work.

11. On or about September 4, 2018, the Registrar received a COMPLAINT from

Ms. Fletcher alleging abandonment on the part of Platinum.

12. On or about October 15, 2018, Investigator Timothy Pennington

conducted a job-site inspection.

13. On October 16, 2018, Investigator Pennington issued a DIRECTIVE.

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). 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 provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 11-04-2018. You are hereby directed to remedy the following violations by the appropriate means: 1. Complaint Item 4: grout lines are not even close to the same. 2. Complaint Item 5: holes in grout and grout cracking already.

RECEIVED 5.16.2019 ROC LEGAL

3. Complaint Item 7: Tiles on face of stairs are concaved in and not finished. 4. Complaint Item 10: Tiles were not fully stuck to ground and with little pressure will come up. 5. Complaint Item 16: The kitchen tile is very uneven and needs to be corrected.

6. Base board is not reinstalled.

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

14. Platinum did not correct the items listed in the DIRECTIVE during the

time period for compliance.

15. On December 14, 2018, Investigator Pennington conducted a compliance

job-site inspection. Investigator Pennington found that Platinum had not repaired any

of the items listed in the DIRECTIVE.

16. During the compliance job-site inspection, Ms. Fletcher’s fiancé, Shawn

Aksmith, informed Mr. Ferguson that he had obtained an invoice stating that it would

cost approximately $9,000 to correct the work. Mr. Ferguson stated that he would pay

for the work to be corrected. However, Mr. Ferguson nor Platinum paid for the work to

be corrected. 17. On April 26, 2019, Investigator Jim Dimond performed a pre-hearing inspection. Investigator Dimond observed that the work had been corrected with the exception of the baseboards upstairs. Ms. Fletcher informed Mr. Dimond that she hired a second contractor to correct the work. 18. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. RECEIVED 5.16.2019 ROC LEGAL

19. At hearing, Ms. Fletcher testified on behalf of herself and presented the testimony of Mr. Aksmith. Investigator Dimond testified regarding the investigation conducted by Investigator Pennington. Investigator Dimond also testified regarding his

pre-hearing inspection.

20. Ms. Fletcher testified that the work was scheduled to be completed in two

weeks, but Platinum did not complete the work and left her home full of dust and debris.

21. Respondent did not request to appear telephonically and did not request

that the hearing be continued. Although the start of the duly noticed hearing was

delayed fifteen minutes to allow Respondent additional travel time, Respondent 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,

Respondent did not present any evidence to defend its license

22. Administrative notice is taken of the Registrar’s public website. According

to the information available on the website on May 15, 2019, Platinum’s license was

first issued on June 6, 2014, and is suspended. Such prior License record also shows

that there are two open complaints against Platinum’s license.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See ARIZ. REV. STAT. section 32-1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See ARIZ. REV. STAT. section 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 section 5 (1960). 3. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of ARIZ. REV. STAT. section 32-1154(A)(3), namely A.A.C. R4-9-108.1 ARIZ. REV. STAT. section 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.” RECEIVED 5.16.2019 ROC LEGAL

4. The preponderance of the evidence shows that Respondent failed to correct the items listed in the Registrar’s DIRECTIVE without valid justification, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(22).

5. The undisputed evidence established that Platinum abandoned the

contract, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(1).

6. There was no evidence presented at the hearing that Platinum violated

ARIZ. REV. STAT. section 32-1124(B).

7. The preponderance of the evidence showed that Platinum violated ARIZ.

REV. STAT. section 32-1154(A)(12).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Order, the Registrar revoke License No. 292429 of Platinum Preservations, LLC.

It is further recommended that the Registrar require Respondent to pay the sum

of $500.00 as a civil penalty pursuant to ARIZ. REV. STAT. section 32-1154(E). It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in ARIZ. REV. STAT. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, May 15, 2019. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

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.” RECEIVED 5.16.2019 ROC LEGAL