ALJDEC decisions subject to certification as final

2019A-01236-CHC-ROC · Registrar of Contractors · 2019-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2019 APPEARANCES: Complainant David Gagon appeared on behalf of himself. No one appeared on behalf of Respondent Bayside Interiors, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Complainant David Gagon and Respondent Bayside Interiors (Bayside) entered into residential repair and remodeling contract. Under the contract, Bayside would remodel Mr. Gagon’s bathroom and repair the leaks in his home. 2. On November 5, 2018, Bayside began work on Mr. Gagon’s home. 3. On December 20, 2018 Bayside stopped work on Mr. Gagon’s home. 4. On March 11, 2019, the Arizona Registrar of Contractors (ROC) received a complaint from Mr. Gagon alleging poor workmanship on the part of Bayside. 5. On April 22, 2019, ROC Investigator Dennis Bierma conducted a job-site inspection. 6. On May 3, 2019, Investigator Bierma issued a Directive to Bayside which provided, 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 June 3, 2019. .

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item #1: “We hired bayside to fix out water leaks and now have multiple water leaks.” Correct water leaks and any damage to the home as a result of the leaks and any damage to the home as a result of the work done to correct the water leaks. (Ex.: Drywall, trim, tiles, paint, etc.)

7. Bayside failed to correct the deficient items by the deadline. 8. On June 10, 2019, the ROC issued a Citation against Bayside’s license. The Registrar alleged that Bayside may have violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9- 108; Ariz. Rev. Stat. sections 32-1154(A)(22). 9. Bayside filed a timely answer to the Citation. 10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 11. A hearing was held on August 23, 2019. 12. Investigator Bierma testified regarding his investigation of the complaint and issuance of the Directive. Mr. Gagon testified on behalf of himself. 13. Mr. Gagon explained that Bayside performed poor work and damaged his home. 14. Bayside did not appear at the hearing and did not file a request to appear telephonically.[1] Although the start of the duly noticed hearing was delayed approximately twenty minutes to allow Bayside additional travel time, Bayside 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, Bayside did not present any evidence to defend its license. 15. Administrative notice is taken of Respondent’s prior License record on September 11, 2019. Such prior License record reflects that Respondent’s License No. 231865 was first issued on April 8, 2007, and is suspended for lack of bond. Such prior License record also reflects that there is one open complaint against Respondent’s License. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1154(A). The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See Ariz. Admin. Code R2-19-119. 2. The suspended status of Respondent’s license does not preclude Complainant from pursuing an administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[2] 3. 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). 4. 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 Ariz. Admin. Code R4-9- 108.[3] 6. The preponderance of the evidence shows that Respondent failed to comply with the May 3, 2019 Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22). 7. Because Bayside has violated Ariz. Rev. Stat. sections 32- 1154(A)(3) and (A)(22), its license could be suspended or revoked. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Bayside Interiors, LLC License No. 231865 for three days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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, September 11, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Respondent filed a request to continue the hearing one day before the date of the hearing. Respondent was expected to appear at the hearing and failed to appear. The request to continue was denied on the day of the hearing. [2] See A.R.S. § 32-1154(C), which provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [3] 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.”

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