ALJDEC decisions subject to certification as final

2019A-02977-CHC-ROC · Registrar of Contractors · 2019-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2019 APPEARANCES: Jerry Buethe appeared telephonically on behalf of Complainant. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT Still Water Concepts LLC (Respondent) is the holder of License Nos. 295756, 325238, 325524 issued by the Arizona Registrar of Contractors (Registrar). On or about June 15, 2018, Pearson Signs (Complainant) entered into a written contract with Respondent for the installation of a “stand alone” paint booth. The amount of the contract was $10,650.00. On or about June 10, 2019, the Registrar received a complaint from Complainant regarding the project alleging abandonment and poor workmanship. The Registrar assigned the complaint to Investigator Greg Johndrow (Investigator Johndrow). After a jobsite inspection, Investigator Johndrow 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 July 31, 2019. All errors in original. Complaint Items 1, 2, and 5 were substantiated and Respondent was ordered to remedy those violations by the appropriate means. Following the issuance of the written directive, Investigator Johndrow did not have any contact with Respondent. After the deadline in the directive expired, Investigator Johndrow was notified that Respondent did not contact Complainant nor comply with the Directive. The Registrar issued a Citation against Respondent, charging possible violation of A.R.S. § 32-1154(A)(1), A.R.S. §32-1154(A)(2), A.R.S. §32- 1154(A)(3)-R4-9-108, and A.R.S. §32-1154(A)(22). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing to Respondent, at its address of record, setting the hearing for October 23, 2019. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 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. Investigator Johndrow testified as to his observations during the jobsite inspection that took place on July 10, 2019, and during the compliance jobsite inspection that occurred on August 2, 2019. Investigator Johndrow stated that Respondent was not present during the inspection. Investigator Johndrow testified that the corrective work was not done. Investigator Johndrow stated that he issued a Citation on August 2, 2019, for abandonment, disregard for building code specifications, poor workmanship, and failure to comply with the Directive. Investigator Johndrow testified that he never received an answer from Respondent following the Citation. At hearing, Jerry Buethe, general manager of Complainant, introduced testimony of his employee, John Hornback. Mr. Hornback has been in the construction business for 50 years. He observed that Respondent’s workers did not install the paint booth per the plans that were discussed. He never observed Rich Carlburg, Respondent’s owner, on site. Mr. Hornback heard noises coming from the motor and knew that the motor was not wired correctly. Mr. Buethe testified that Respondent was hired to build a paint booth for Complainant’s business. Complainant needed a “stand alone” paint booth to paint signs for commercial businesses. The Respondent did not build the paint booth according to their agreed upon plans. As a result, there was leaking from the roof of the paint booth. The roof panels were not installed and mounted properly. There were substantial holes in the roof as a result of incorrect screws. Furthermore, there was improper electrical work done on the installed motors. Mr. Buethe contacted Respondent regarding the issues. Respondent never replied. Ultimately, Mr. Buethe hired another electrician to fix the electrical work so that he could keep his business open. Respondent did not comply with the Directive and fix the roofing. Complainant must resubmit for a new building permit due to Respondent’s inactions. Mr. Buethe paid Respondent $11,505.00. That amount was over the agreed upon contract amount. Administrative notice is taken of Respondent’s prior License record on October 23, 2019. Such prior License record reflects that Respondent’s License No. 295756 was first issued on February 13, 2015, and was active. Such prior License record also reflects that there were two other license numbers issued to qualifying party and member, Richard E. Carlburg under numbers 325238 and 325524. Additionally, the License records reflects that there is one open complaint, presumed to be this case. 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. 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). 3. The evidence established that Respondent abandoned the project, without legal excuse, after receiving payment of $11,505.00. Respondent was in violation of A.R.S. § 32-1154(A)(1). 4. Complainant established that Respondent disregarded the plans and the specifications of the plans. Thus, Respondent was in violation of A.R.S. § 32-1154(A)(2). 5. The evidence is undisputed that Respondent’s poor construction of the paint booth and improper wiring resulted in poor workmanship in violation of A.R.S. § 32-1154(A)(3)-R4-9-108. 6. Lastly, 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). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Nos. 295756, 325238, and 325524. 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). 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, November 8, 2019.

/s/ Antara Nath Rivera 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