FINACT2019A-01759-ROC.pdf

2019A-01759-CHC-ROC · Registrar of Contractors · 2019-10-03



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New ALJ Decision transmitted for ROC (2019A-01759-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Wed, Sep 25, 2019 at 1:21 PM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-01759-CHC-ROC Filed by: OAH Filed on: 9/25/2019 Due Date for Final Agency Action (if applicable): 10/30/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-01759-CHC-ROC-ALJDecision-6533.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 9.25.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sue Ann Scott, No. 2019A-01759-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Patron Construction LLC, ROC License: ROC 317902, RESPONDENT

HEARING: September 5, 2019 APPEARANCES: Complainant Sue Ann Scott, appeared on her own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. Patron Construction LLC (Respondent) is the holder of License No. 317902 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about February 2, 2019, Sue Ann Scott (Complainant) entered into a written contract with Respondent to remove and install siding on her two trailers. 3. On or about April 8, 2019, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent abandoned the project. The Complaint indicated that Complainant paid Respondent $2,800.00, half of the contract price. The Complaint further alleged that Respondent never started the project even after Complainant and Respondent agreed that Respondent was to do one of the trailers for $2,800.00 instead of two trailers. 4. The Registrar assigned the complaint to Investigator Ruben Perez (Investigator Perez). After a jobsite inspection, Investigator Perez issued a written 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. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 9.25.2019 ROC LEGAL

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 24, 2019. Complaint Item 1: Contract with Mr. Franco. Pd ½ when contractor start next day. Mr. Franco said he’d do one (#889) for the $2,800.00 Work on project had not started as of day of inspection, contract is dated 02-02- 2019 noting payment of $2,800.00 was made on 02-15-2019. Complete work as agreed upon in contract. All errors in original.

5. Following the issuance of the written Directive, Investigator Perez did not

have any contact with Respondent. After the deadline in the directive expired,

Investigator Perez was notified that Respondent did not contact Complainant nor comply with the Directive. 6. On or about June 12, 2019, the Registrar issued a Citation against Respondent, charging possible violation of A.R.S. § 32-1154(A)(3) and A.R.S. §32- 1154(A)(22). 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. On or about August 1, 2019, the Registrar issued a Notice of Hearing to Respondent, at its address of record, setting the hearing for September 5, 2019. The Notice of Hearing included the advisement that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 9. Investigator Perez testified as to his observations during the jobsite inspection that took place on May 6, 2019. Investigator Perez stated that Respondent was not present during the inspection. Investigator Perez testified that he confirmed that the old siding had not been replaced with new siding. 10. Investigator Perez stated that while he did not hear from Respondent after he issued the Directive, he received a letter from Respondent on July 8, 2019, in response to the Citation. In the letter, Respondent denied all allegations and stated that Complainant breached the contract and that Complainant was problematic. RECEIVED 9.25.2019 ROC LEGAL

11. At hearing, Complainant testified that in February 2019, her homeowner’s association, at Sun Vista Parks, contracted with Respondent to do work on the trailers in the association. She stated that she contracted with Respondent to remove and

install new siding and trim for her trailers located on lots 889 and 884. She testified that

she paid Respondent $2,800.00 (half the contract price) and then realized that she

could not afford to pay for both trailers. Complainant stated that she tried to get out of

the contract. Complainant testified that when Respondent informed Complainant that

he bought enough wood for one trailer, she agreed to have Respondent do one trailer,

lot 889, because she felt bad. She told him that the $2,800.00 was the total payment for

one trailer. Complainant testified that Respondent agreed to do one trailer for that

amount.

12. Complainant testified that Respondent indicated that it would start work,

on her home, on March 23, 2019, but did not start on that date. Complainant opined

that Respondent was working on other trailers in the association and that was the

reason Respondent delayed the start of her home for a week. Complainant stated that

when Respondent was about to start work on the house, she was told that the windows

needed to be taken out. She stated that Respondent made a hole by one of the windows to take the window out. She stated that Respondent then asked her for more money, and a new contract, for fixing the windows. Complainant testified that she did not agree to that because she could not afford to pay more money. She stated that Respondent then indicated that it would take the skirting off so that it could begin removing the siding. Complainant testified that Respondent never came back. Complainant stated that she still had the hole by the window. 13. Complainant stated that she later found out that Respondent did not complete the work on her neighbors’ trailers and did not buy any wood for her trailer as it represented. Complainant stated that, on or about August 9, 2019, she texted Respondent to see if Respondent would comply with the Directive. She stated that Respondent did not respond. 14. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 RECEIVED 9.25.2019 ROC LEGAL

minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

15. Administrative notice is taken of Respondent’s prior License record on

September 5, 2019. Such prior License record reflects that Respondent’s License No.

317902 was first issued on February 28, 2018, and was currently active. Such prior

License record also reflects that there were two open complaints, one of which is

presumed to be related to this matter. There have been no cases that resulted in

discipline or were resolved or settled against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101

et seq. The copy of 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. See A.R.S. §§ 41-1092.04 and 41-1092.05(D). 2. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. 3. 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). 4. ARIZ. ADMIN. CODE 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.” 5. ARIZ. REV. STAT. § 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.” 6. ARIZ. REV. STAT. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter RECEIVED 9.25.2019 ROC LEGAL

or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial

action. The time permitted for compliance shall not be less than fifteen days from the

date of issuance of the directive. A license shall not be revoked or suspended nor shall

any other penalty be imposed for a violation of this paragraph until after a hearing has

been held. The Registrar has the authority to issue license discipline under this

provision, including summary suspension, revocation, or imposing a civil penalty or

recovery fund award.”

7. ARIZ. REV. STAT. § 32-1154(E) holds, in pertinent parts, that the Registrar

may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each

violation. The failure by the licensee to pay any civil penalty imposed results in the

automatic revocation of the license thirty days after the effective date of the order

providing for the civil penalty. It also holds that no future license may be issued to an

entity consisting of a person who is associated with the contractor, unless payment of

any outstanding civil penalty is tendered.”

8. Complainant established, by a preponderance of the evidence, that work performed by Respondent was not done in a professional and workmanlike manner. In addition, Complainant established that Respondent did not perform the work in accordance with any professional industry standards. 9. In this case, the Registrar issued its Directive to Respondent on May 7, 2019, and required Respondent’s full compliance by May 24, 2019. Respondent failed to comply. There are sufficient facts in the record to conclude that Respondent violated ARIZ. REV. STAT. §§ 32-1154(A)(22), by a preponderance of the evidence. 10. The evidence clearly established that Respondent abandoned the project when Respondent was paid $2,800.00 by Complainant and never started the project. 11. Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties. RECOMMENDED ORDER RECEIVED 9.25.2019 ROC LEGAL

Based on the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED that on the effective date of the Final Order in this matter

Respondent Patrol Construction LLC, Registrar License No. 317902 shall be revoked.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay

the sum total of $500.00 as a civil penalty pursuant to ARIZ. REV. STAT. § 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 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. § 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 18, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors