ALJDEC decisions subject to certification as final

2019A-00336-CHC-ROC · Registrar of Contractors · 2019-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 Nomar Developments Inc. (Respondent) is the holder of License Nos. 234490, 313964, and 324762 issued by the Arizona Registrar of Contractors (Registrar). 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. On or about January 22, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

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 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.

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. 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). 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. 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. Complainant also indicated that the cabinets were not the same color and that Respondent had said they would be repaired in October 2019. 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. 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). 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. Done this day, October 7, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” [2] 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