PDF copy: ALJDEC decisions subject to certification as final

2019A-01040-CHC-ROC · Registrar of Contractors · 2020-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stacey B. Rivera, No. 2019A-01040-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE S & R Builders LLC, DECISION ROC License: ROC 312726, RESPONDENT HEARING: November 25, 2019 APPEARANCES: Stacey B. Rivera (Complainant) appeared on her own behalf. James Sparks, attorney, appeared on behalf of S & R Builders LLC (Respondent). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. Respondent is the holder of License No. 312726 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about December 20, 2018, Complainant entered into a written contract whereby Respondent was hired to remodel Complainant’s home. The work included building an addition, concrete work, and installation of the roof, walls, and doors. 3. On or about March 4, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project. 4. The Registrar assigned the Complaint to Investigator Jack Grimm (Investigator Grimm). During the jobsite inspection, Investigator Grimm determined that there was a written contract between the parties, that there was no work done, and that the plans were not completed. Investigator Grimm also determined that Complainant paid Respondent and Respondent did not refund Complainant’s money. 5. On or about May 9, 2019, Investigator Grimm issued a Directive From The Registrar (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

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 28, 2019. You are hereby directed to remedy the following violations by the appropriate means:

1. Complete remodeling construction project per contract. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

All errors in original. 6. On or about June 12, 2019, Investigator Grimm received written correspondence from Respondent which indicated that Respondent was denied access to Complainant’s property. During the course of his investigation, Investigator Grimm reviewed emails between the parties and determined that Complainant denied access to Respondent. 7. On or about June 26, 2019, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(8); and A.R.S. § 32- 1154(A)(22). 8. At hearing, Complainant testified that she entered into a contract with Respondent on December 20, 2018. Respondent began work on January 15, 2019. The only work Respondent did that day was take measurements for the concrete work. Respondent never came back to Complainant’s home to start the project. Complainant reached out to Respondent multiple times about the plans. Respondent did not draw up the plans correctly. Complainant had to correct the plans. As of January 31, 2019, nothing had been done on the project. 9. On or about February 8, 2019, Respondent “cancelled” the contract. Complainant argued that the contract was null and void once Respondent indicated it would not move forward with the project. Complainant hired an attorney to get her money back. Complainant filed a Complaint with the ROC. At all times, Complainant provided complete access to her home. 10. At hearing, Nancy Sainz, owner of Respondent, testified on behalf of Respondent. Respondent, through its employee, Will Rosas, entered into a written contract with Complainant. Respondent began work by measuring, meeting with an architect, and discussing plans with Complainant. Complainant kept changing the plans. Respondent resubmitted the plans to the architect multiple times. Respondent went to the city several times to obtain the requisite permit, but never obtained one. Ms. Sainz argued that Complainant “cancelled” the project because Complainant could not pay for the additional charges due to Complainant’s changes to the plan. 11. Furthermore, Complainant clearly stated that she did not want Respondent on her property. Respondent was not allowed on the property following the Directive to complete the project. Respondent contacted Complainant, several times, to schedule the work to be performed. 12. Administrative notice is taken of Respondent’s prior License record on November 25, 2019. Such prior License record reflects that Respondent’s License No. 312726 was first issued on April 13, 2017, and is active. Respondent’s address of record for the license is 4313 East Pearce Road, Phoenix, AZ 85044-1014. Nancy Sainz is listed on the license as Qualifying Party and Member.1 The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $14,000.00 surety bond issued through Merchant’s Bonding Co. (Mutual) effective August 15, 2018.2 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). See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXkqEAH. Id. 3. Complainant established, by a preponderance of the evidence that Respondent abandoned the project after it was fully paid. The only work Respondent performed from December 21, 2018 and February 8, 2019, was that Respondent took measurements, discussed the plans, and attempted to obtain a permit. Before the project deadline, Respondent indicated that it would not move forward with the project. Regardless of whether Complainant and Respondent had misunderstandings regarding the plans, Respondent failed to complete the project when it indicated that it would not move forward with the project. 4. Furthermore, Complainant established that she paid Respondent $43,121.34. Respondent did not return the money. There was no evidence presented of any refund provisions in the contract. Therefore, Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1)3 and did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.4 5. Respondent, however, established that it was unable to comply with the written directive due to Complainant’s refusal to let Respondent on her property. 6. Denial of access constitutes a valid justification for failing to comply with a written directive of the ROC. Respondent established by a preponderance of the evidence that it contacted Complainant to complete the project per the directive. The evidence established that Complainant denied it access to her property to allow Respondent to complete the project as directed. Therefore, Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(22).5

A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” 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.” 7. A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.” RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 312726 for a period of one (1) day. IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay to Complainant the sum of $43,121.34 as restitution pursuant to A.R.S. § 32-1156.01. IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the restitution on or before thirty days following the effective date of the Registrar’s final order, the Registrar suspend 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)(7), unless Respondent tenders payment of any outstanding restitution. 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, December 4, 2019. /s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors