ALJDEC decisions subject to certification as final

2018A-4143-ROC · Registrar of Contractors · 2019-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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). 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.

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. 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] 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

----------------------- [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.” 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.”

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