FINACT2019A-00336-CHC-ROC-FinalAgencyAction-6559.pdf

2019A-00336-CHC-ROC · Registrar of Contractors · 2019-11-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Christian J Uriarte, Case No. 2019-00336

COMPLAINANT, Docket No. 2019A-00336-CHC-ROC v.

Nomar Developments Inc., FINAL ADMINISTRATIVE DECISION AND License No. ROC 234490, 313964, 324762, 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 of each finding of fact or conclusion of law. 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 accepts it. CONCLUSION AND ORDER 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 November 24, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 FINAL NOTES On page 4, line 20 replace “(A)(5)” with “(A)(7)”. Dated October 15, 2019.

By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail October 15, 2019 to:

Respondent Nomar Developments Inc PO Box 2366 Somerton, AZ 85350 Nomar Development Inc 2554 W. 16th St. #410 Yuma, AZ 85364 Complainant Christian J Uriarte PO Box 2122 / 330 W Jackson St Somerton, AZ 85350 Copy sent electronically 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 Tammy L. Eigenheer, Administrative Law Judge Case No. 2019-00336/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 10.7.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christian J Uriarte, No. 2019A-00336-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Nomar Developments Inc., DECISION ROC License: ROC 234490, 313964, 324762 RESPONDENT HEARING: September 13, 2019 APPEARANCES: Complainant Christian Uriarte appeared on his own behalf. Ramon Arias, Owner and Qualifying Party, appeared on behalf of Respondent Nomar Developments Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Nomar Developments Inc. (Respondent) is the holder of License Nos. 234490, 313964, and 324762 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about September 22, 2017, Christian Uriarte (Complainant) purchased a home from Respondent. Following the purchase of the home, Complainant noted several issues during the walkthrough and in the months following that needed to be addressed by Respondent. Respondent performed some corrective work on the home, but Complainant was not satisfied with the issues. 3. On or about January 22, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez 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 Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.7.2019 ROC LEGAL

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 May 6, 2019. You are hereby directed to remedy the following violations by the appropriate means: [List of 23 items to be corrected]

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent completed most of the items listed in the directive. On July 3, 2019, Investigator Perez conducted a compliance inspection. At that time, three items remained to be corrected – Item 1, the bottom lock on French door did not latch frame to secure door; Item 3, the lower corner wall near kitchen had a crack; and Item 6A, several cabinet doors had paint

overspray on the inside and two top cabinet doors (laundry room and kitchen) were

cracking at the joints.

6. The Registrar issued a Citation against Respondent, charging possible

violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-

1154(A)(22).

7. Investigator Perez testified at the hearing, that he was unable to conduct

a prehearing inspection due to the unavailability of Complainant, but was told that the

front door had been addressed to Complainant’s satisfaction. Investigator Perez stated

that during his compliance inspection, he noted the paint on the cabinet doors was a

noticeably lighter than the paint on the cabinet frame. Investigator Perez noted that

when Respondent attempted to correct the crack on the wall, it caused the other side of

the corner to pop out.

8. Complainant testified that in early September 2019, Respondent repaired

the front door issue and attempted to correct the wall issue. Complainant stated that the patch to the drywall was uneven and did not match the surrounding wall area. RECEIVED 10.7.2019 ROC LEGAL

Complainant also indicated that the cabinets were not the same color and that Respondent had said they would be repaired in October 2019. 9. Ramon Arias, Owner and Qualifying Party, testified that the wall issue had

been repaired on September 3, 2019. Mr. Arias acknowledged that the cabinets had

not been touched since July 3, 2019, prior to Investigator Perez’s compliance

inspection. Mr. Arias argued the color difference was not noticeable enough to need

correcting.

10. Administrative notice is taken of Respondent’s prior License record on

October 3, 2019. Such prior License record reflects that Respondent’s License No.

313964 was first issued on June 1, 2017, and is current. Such prior License record

also reflects that there were no open or prior complaints Respondent’s license. Such

prior License record also reflects that Respondent’s License No. 324762 was first

issued on June 11, 2019, and is current. Such prior License record also reflects that

there were no open or prior complaints Respondent’s license. Such prior License

record reflects that Respondent’s License No. 234490 was first issued on July 12,

2007, and was voluntarily cancelled on June 1, 2017. Such prior License record also

reflects that there were no other open or prior complaints Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. 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). 3. Respondent’s voluntarily cancelled license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). RECEIVED 10.7.2019 ROC LEGAL

4. The evidence presented failed to establish that the repair to the wall was not in conformity with the Registrar’s standards. The evidence presented established that the paint on the kitchen cabinet doors did not match the kitchen cabinet frames.

Accordingly, Complainant established that Respondent did not complete the project in

a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.1

5. The evidence established that Respondent did not complete all of 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).2

RECOMMENDED ORDER

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

Order, the Registrar shall suspend Respondent’s License Nos. 234490, 313964, and

324762 for a period of two days.

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. 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.” 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)(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.” RECEIVED 10.7.2019 ROC LEGAL

Done this day, October 7, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors