FINACT2019A-01375-CHC-ROC.pdf

2019A-01375-CHC-ROC · Registrar of Contractors · 2019-08-16

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Kathryn Engle, Case No. 2019-01375 COMPLAINANT, Docket No. 2019A-01375-CHC-ROC v. Acra Construction LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 186920, AND 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. 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 hereby accepts it. CONCLUSION 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 September 22, 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. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated August 13, 2019

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail August 13, 2019 to: Respondent Acra Construction LLC 880 W Camino Casa Verde Green Valley, AZ 85614 Complainant Kathryn Engle 933 W Camino Delicias Green Valley, AZ 85614 AND copy electronically mailed 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 Diane Mihalsky, Administrative Law Judge Case No. 2019-01375/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received 8/05/2019 ROC Legal IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kathryn Engle, No. 2019A-01375-CHC-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION Acra Construction LLC, License No. ROC 186920, RESPONDENT.

HEARING: July 17, 2019, at 1:00 p.m. APPEARANCES: Kathryn Engle (“Complainant”) appeared on her own behalf; Acra Construction LLC (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. On or about August 20, 2003, the Arizona Registrar of Contractors (“the

Registrar”) issued License No. ROC 186920 for General Dual KB-2 for Dual

Residential and Small Commercial contracting to Respondent. Respondent’s address

of record is 880 W. Camino Casa Verde, Green Valley, Arizona 85614.

2. On or about March 15, 2019, Complainant filed a complaint with the Registrar

against Respondent’s license, alleging that Respondent had contracted to remodel her

kitchen, utility room, and garage in September 2018. Although Respondent promised

to start work in early November 2018, it did nothing until February 2019. After Complainant paid more than $10,000.00 and made numerous attempts to contact Respondent, it started work on the garage in February 2019, by taking a wall down, but failed to complete any significant work on the project. 3. The Registrar assigned the complaint to Investigator Gregory Johndrow for investigation. Investigator Johndrow performed a jobsite inspection, which Respondent did not attend. On April 9, 2019, Investigator Johndrow on behalf of the Registrar

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received 8/05/2019 ROC Legal issued a directive to Respondent that required it to remedy the following violations on or before April 25, 2019:

Complaint Item 1: "Contracted to have kitchen remodeled, utility room remodeled…they NEVER started kitchen or utility room and it is mid March." (Complainant's description of the [Respondent’s] failure to complete the work per contract.)

Complaint Item 2: "…and garage wall taken down and repainted…they started garage in late February. It is not finished." (Complainant's description of the [Respondent’s] failure to complete the work per contract.)

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

4. On April 26, 2019, Investigator Johndrow performed a compliance inspection, which Respondent also did not attend. After Investigator Johndrow saw that Respondent had not performed any work to comply with the directive, Investigator Johndrow referred the matter to the Registrar’s Legal Department. 5. On May 2, 2019, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke Respondent’s contractor’s license under A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(22). The Registrar sent the Citation to Respondent at its address of record. 6. On or about May 16, 2019, Respondent filed a written answer to the citation. 7. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 8. On May 30, 2019, the Registrar issued a Notice of Hearing, setting a hearing videoconferenced hearing from the Registrar’s Tucson office on July 17, 2019, at 1:00 p.m. The Registrar sent the Notice of Hearing to Respondent at its address of record. 9. A hearing was held on July 17, 2019. Complainant testified on her own behalf. Investigator Johndrow also testified. Received 8/05/2019 ROC Legal 10. 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 twenty-four minutes to allow Respondent additional time for travel or to contact

OAH or the Registrar, Respondent did not appear, through an authorized member,

employee, or attorney, and did not contact OAH or the Registrar to request that the

start of the hearing be further delayed. Consequently, Respondent did not present any

evidence to defend its license.

ADDITIONAL EVIDENCE

11. Complainant testified consistently with her complaint.

12. Investigator Johndrow testified that he did not receive any follow-up from

Respondent after he issued the directive. After the directive expired, Complainant

contacted him to say that Respondent had not performed any work to comply with the

directive.

13. Investigator Johndrow testified that he performed a prehearing inspection on July 5, 2019, and saw that the condition of the jobsite had not changed since the first jobsite inspection on April 9, 2019. 14. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on this date. On July 17, 2019, Respondent’s license had been suspended as a result of discipline in two other cases. CONCLUSIONS OF LAW 1. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.1 2. The suspended status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the

1 See A.R.S. §§ 41-1092.04; 41-1092.05(D). Received 8/05/2019 ROC Legal Registrar from determining the merits of Complainant’s complaint.2 This matter lies within the Registrar’s jurisdiction.3 3. Complainant bears the burden of proof to establish cause to suspend or

revoke Respondent’s license by a preponderance of the evidence.4 “A preponderance

of the evidence is such proof as convinces the trier of fact that the contention is more

probably true than not.”5

4. Complainant established that Respondent abandoned the project when it

failed to perform any more work after February 2019. Complainant therefore

established cause to suspend or revoke Respondent’s contractor’s license under

A.R.S. § 32-1154(A)(1).6

5. Complainant also established that Respondent failed to take any action to

comply with the April 9, 2019 directive that Investigator Johndrow issued on behalf of

the Registrar. Complainant therefore established additional cause to suspend or

revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).7

RECOMMENDED ORDER

In view of the foregoing, on the effective date of the final order in this matter, IT IS ORDERED that Respondent Acra Construction LLC’s License No. ROC 186920 shall be revoked. IT IS FURTHER ORDERED that Respondent shall pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

See A.R.S. § 32-1154(C). That statute 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 . . . .” See A.R.S. § 32-1101 et seq. 4 See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). A.R.S. § 32-1154(A)(1) includes among the grounds to suspend or revoke 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)(22) includes among the grounds to suspend or revoke 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 8/05/2019 ROC Legal IT IS FURTHER ORDERED that if Respondent fails to pay the entire amount of

the civil penalty on or before thirty days following the effective date of the final order,

Respondent’s licenses shall be revoked, 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.

If the Director of the Office of Administrative Hearings certifies this Administrative

Law Judge Decision, the effective date of the order will be five days from the date of

certification.

Done this day, August 2, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors