FINACT2019A-01924-CHC-ROC.pdf

2019A-01924-CHC-ROC · Registrar of Contractors · 2019-09-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

David Lloyd Runyan, Case No. 2019-01924 COMPLAINANT, Docket No. 2019A-01924-CHC-ROC v. RML Residential Properties LLC, FINAL ADMINISTRATIVE DECISION DBA: Village Construction, AND ORDER License No. ROC 283087, 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 October 6, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500 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 FINAL NOTE

On page 2, line 21 replace “Investigator Corlett stated that he” with “The Registrar” and “June 4,

2019” with “June 10, 2019”. On page 2, line 22 replace “Investigator Corlett testified that he” with “The

Registrar”. On page 2, line 23 replace “June 18, 2019” with “June 17, 2019”. On page 5, line 5, replace

“A.R.S. § 32-1101(A)(5)” with “A.R.S. § 32-1101(A)(7).”

Dated August 27, 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 27, 2019 to: Respondent RML Residential Properties LLC DBA: Village Construction 746 Gemstone Ave Bullhead City, AZ 86442 Complainant David Lloyd Runyan 1359 Riverfront Drive Bullhead City, AZ 86442

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 Antara Rivera, Administrative Law Judge Case No. 2019-01924 / VE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 8.15.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Lloyd Runyan, No. 2019A-01924-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION RML Residential Properties LLC, DBA: Village Construction, ROC License: ROC 283087, RESPONDENT

HEARING: July 26, 2019 APPEARANCES: Complainant David Lloyd Runyan, appeared telephonically on his own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________

FINDINGS OF FACT

1. RML Residential Properties LLC (Respondent) is the holder of License No.

283087 issued by the Arizona Registrar of Contractors (Registrar).

2. On August 13, 2018, David Lloyd Runyan (Complainant) entered into a

verbal contract with Respondent for a deck remodeling project. The parties did not

execute a written contract.

3. On or about April 15, 2019, the Registrar received a Complaint against

Respondent from Complainant alleging that Respondent was suspended and filed for

bankruptcy.

4. The Registrar assigned the complaint to Investigator Cliff Corlett

(Investigator Corlett). After a jobsite inspection, Investigator Corlett 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. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 21, 2019. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 8.15.2019 ROC LEGAL

Complaint Item 1 was substantiated and Respondent was ordered to complete the project per the agreement. 5. Following the issuance of the written directive, Investigator Corlett did not have any contact with Respondent. The Directive was returned back to Investigator Corlett as undeliverable. After the deadline in the directive expired, Investigator Corlett was notified that Respondent did not contact Complainant nor comply with the Directive. 6. The Registrar issued a Citation against Respondent, charging possible violation of A.R.S. § 32-1154(A)(1) 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. The Registrar issued a Notice of Hearing to Respondent, at its address of record, setting the hearing for July 26, 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 Corlett testified as to his observations during the jobsite inspection that took place on May 1, 2019. Investigator Corlett stated that Respondent was not present during the inspection. Investigator Corlett testified that, on June 3, 2019, he contacted Complainant to see if he had contact with Respondent. Investigator Corlett testified that there was no corrective work done or settlement reached between the parties. 10. Investigator Corlett stated that he issued a Citation on June 4, 2019 for abandonment and failure to comply with the Directive. Investigator Corlett testified that he received Respondent’s Answer to Citation on June 18, 2019. Respondent denied all allegations in its Answer to Citation. Investigator Corlett stated that he learned, from an unrelated complaint, that Respondent filed for bankruptcy in federal court under case number 0:19-BK-04798. 11. Complainant testified that in August 2017, the parties entered into a verbal contract, whereby Respondent was hired to extend Complainant’s deck. Complainant stated that he paid Respondent $5,000.00 as partial payment for the plans, preparation,

RECEIVED 8.15.2019 ROC LEGAL

permits, and geological survey. Complainant testified that Respondent gave him two estimates for the project in December 2018. The last estimate totaled $48,232.19. 12. Complainant stated that Respondent sent him an invoice for $9,214.50 in March 2018. Complainant stated that he paid Respondent $9,000.00 but that Respondent returned the check to him. Complainant stated that Respondent sent another invoice in August 2018 for $9,000.00. Complainant testified that he wrote Respondent a cashier’s check for $9,000.00. 13. Complainant stated that he paid Respondent a total of $14,214.50. Complainant testified that the only work that was completed was the demolition of the shed, a geological survey, a geotechnical evaluation report, site preparation, and architecture of proposed plans. 14. Complainant stated that the project, between August 2017 and August 2018, was delayed due to Jim Zaborsky’s (Mr. Zaborsky) health issues. Mr. Zaborsky was the owner of RML Residential Properties LLC, DBA: Village Construction. Complainant testified that Respondent informed Complainant that he would not be able to pay Complainant the $9,000.00. Complainant stated that he learned of Respondent’s bankruptcy case when he received a letter from the bankruptcy court listing him as a creditor. 15. 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 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 16. Administrative notice is taken of Respondent’s prior License record on July 26, 2019. Such prior License record reflects that Respondent’s License No. 283087 was first issued on January 21, 2013, and was revoked on May 14, 2019. Such prior License record also reflects that there were three open complaints, there were five complaints resulting in discipline, and there were no cases that resulted in resolved/settled/withdrawn complaints against Respondent’s license. CONCLUSIONS OF LAW

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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. Respondent’s revoked license does not deprive Complainant of his/her right to prosecute the complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 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. The evidence clearly established that Respondent abandoned the project after receiving payment of $14,214.50. Therefore, Complainant proved, by a preponderance of the evidence, that Respondent abandoned the contract without legal excuse for the abandonment in violation of A.R.S. § 32-1154(A)(1).1 5. Furthermore, Complainant established that Respondent failed to take appropriate corrective action following a written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).2 RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 283087. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

1 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)(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.” RECEIVED 8.15.2019 ROC LEGAL

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 A.R.S. § 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, August 14, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors