ALJDEC decisions subject to certification as final

2019A-01375-CHC-ROC · Registrar of Contractors · 2019-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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.

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. 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 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.

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. 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. On or about May 16, 2019, Respondent filed a written answer to the citation. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 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. A hearing was held on July 17, 2019. Complainant testified on her own behalf. Investigator Johndrow also testified. 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 Complainant testified consistently with her complaint. 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. 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. 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 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] The suspended status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[2] This matter lies within the Registrar’s jurisdiction.[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] 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] 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). 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 ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] 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 . . . .” [3] 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). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] 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.” [7] 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.”

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