ALJDEC decisions subject to certification as final

2019A-02007-CHC-ROC · Registrar of Contractors · 2019-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22,, 2019 APPEARANCES: Tiffany Smith, Complainant, Shawn Preston, witness for Complainant, John Smith, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT According to the public website of the Registrar of Contractors (“the Registrar”), on or about October 12, 2007, License No. 292330, a Specialty Dual CR-60 Finish Carpentry contracting license, was issued to Respondent. Respondent’s address of record is 4750 N Barghout Place, Tucson, AZ 85745- 9424. On or about April 18, 2019, Complainant filed a complaint with the Registrar against Respondent’s license based on its alleged abandonment of its contract to fabricate and install new kitchen countertops, a waterfall, laundry room counters and to remodel two bathrooms at Complainant’s house at 8802 North Riviera Drive, Oro Valley, Arizona. Complainant alleged that she had paid Respondent $18,312.00 of the $20,980.00 contract price. The Registrar assigned the complaint to its Investigator John Smith to investigate. Investigator Smith sent a letter to Complainant and to Respondent, at its address of record, to notify them that he had scheduled a jobsite inspection on May 17, 2019. Respondent did not attend the jobsite inspection. On May 17,2019, Investigator Smith issued a Written Directive [the “Directive”] 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-l 154(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: '"Abandonment"

Complaint It 2: The kitchen island counter was installed incorrectly, and the waterfall edge had to be abandoned. Countertop therefore has incomplete 45 degree exposed edge & our discussed solution has not been done" This was described to include the following: • Rough and unfinished end of the island top in the kitchen • Pen marks on the countertop at both sides of the kitchen faucet.

Complaint item 4: 'Tile in laundry room is incomplete and none of the backsplash tile throughout home has been grouted" This was described to include the following; • Laundry room backsplash tile has grouted in the pantry, Laundry room, and four bathrooms

Complaint item 6: As of today 4/16, the laundry room, kitchen island counter and kitchen backsplash are incomplete. This was described to include the following: • Rough and unfinished seams in the laundry room countertops • Rough and unfinished end of the island top in the kitchen • Pen marks on the countertop at both sides of the kitchen faucet • Kitchen backsplash has not been started • laundry room backsplash tile has not been finished • Backsplash tile has not been grouted in the pantry, laundry room, and four bathrooms.

Investigator Smith testified that Respondent failed to provide the Registrar with satisfactory written proof of its compliance with the Directive prior to 5:00 p.m. on June 3, 2019. Complainant testified that no work had been attempted by Respondent since the filing of its Complaint Investigator Smith referred the complaint to the Registrar’s Legal Department with the recommendation that it charge Respondent with abandonment. On June 10, 2019, the Registrar issued a Citation, charging cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1), A.R.S. § 32- 1154(A)(3), A.R.S. § 32-1154(A)(12), A.R.S. § 32-1154(A)(17) and A.R.S. § 32-1154(A)(22). The Registrar sent the Citation to Respondent by certified and regular mail at its address of record. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. On July 16, 2019, the Registrar issued a Notice of Hearing, setting hearing on March 3, 2017, at 8:30 a.m. The Registrar mailed the Notice of Hearing to Respondent at its address of record. A hearing was held on August 223, 2019. Investigator Smith testified confirming his findings that Respondent’s work was below workmanship standards, that the project had been abandoned by Respondent, that Respondent’s license was suspended at the time Respondent bid for Complainant’s project and was suspended at the time all work was done by the Respondent and that a Directive was issued for repairs to the Respondent, but Respondent has never acted to comply with the corrective work order contained in the Directive. Complainant submitted exhibits and 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-five minutes to allow Respondent additional travel time, Respondent 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, Respondent did not present any evidence to defend its license. The Complainant testified that although Respondent “hit the ground running” by performing demolition on the project, very little work was performed on the project by the time Complainant filed the complaint with the Registrar. Complainant testified that after filing the Complaint, another contractor was hired to complete Respondent’s work Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. Respondent’s license has been disciplined in the past and has three pending complaints. On February 26, 2019, Respondent’s license was and remains suspended as of the date of the hearing in this matter.

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. The administratively suspended status of Respondent’s license does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Complainant established by a preponderance of the evidence that Respondent abandoned performance of its contract with Complainant without legal excuse. Therefore, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(1). Complainant established by a preponderance of the evidence that Respondent’s work was below workmanship standards contrary to A.A.C. R4-9- 108 and thereby has proven that Respondent violated A.R.S. § 32-1154(A)(3). Complainant established by a preponderance of the evidence that Respondent’s conduct, or failure to act constitutes a failure in a material respect to comply with the Registrar’s statute’s, rules and regulations in violation of A.R.S. § 32-1158. Complainant established by a preponderance of the evidence that Respondent contracted, offered to contract or submitted a bid while its contractor license was under suspension or inactive in violation of A.R.S. § 32- 1154(A)(17). Complainant established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(22) by failing or refusing without excuse to comply with the Directive on or before the Directive’s stated deadline for compliance. The administratively suspended status of Respondent’s license, that even though Respondent’s license was suspended it continued to conduct business ignoring the suspended status of Respondent’s license, Respondent’s failure to appear for the job site inspection or appear at the hearing are aggravating circumstances in this case. It is therefore apparent, at this time, the Respondent refuses to be or cannot be regulated. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the final Order in this matter, Respondent Elite Granite Fabrication LLC, ROC License 292330 shall be revoked.

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 five days from the date of that certification. Done this day, September 11, 2019. Done this day, September 11, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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