ALJDEC decisions subject to certification as final
2019A-03081-CHC-ROC · Registrar of Contractors · 2020-08-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Desiree Monique Acejo,
COMPLAINANT
v.
Dumac LLC,
ROC License: ROC 303678,
RESPONDENT
No. 2019A-03081-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: August 10, 2020
APPEARANCES: Desiree Monique Acejo appeared in person, representing herself. Neither Qualifying Party Juan Duran nor any other person on behalf of Respondent appeared.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
1. Dumac LLC (Respondent) is the holder of License No. 303678, KB-2 Dual Residential and Small Commercial issued by the Arizona Registrar of Contractors (Registrar).
2. On or about September 5, 2018, Complainant signed a contract with Respondent for remodeling of a home and a pool. The contract included demolition of plaster in the pool, plumbing, servicing of existing pool equipment, and installation of new plaster in the pool. The contract included removal of all trash and debris.
3. On or about September 14, 2018, Complainant signed a contract with Respondent for construction of a block fence with iron insets and a rolling gate.
4. On or about June 14, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
5. On August 6, 2019 Investigator Lisa Melton conducted a jobsite inspection. Respondent failed to appear for the jobsite inspection.
6. On September 5, 2019, Investigator Melton issued a written directive to Respondent that provided Respondent was required to address eight items prior to September 24, 2019.
7. While Respondent contacted Investigator Melton on September 23, 2019, to say that he had been terminated on the job and provided some information, Investigator Melton was not able to determine from that information whether Respondent had, in fact, been fired. As she noted at hearing, Respondent would still be responsible for corrective work on determined poor workmanship and any damages he had caused while performing work at the project.
8. Complainant confirmed to Investigator Melton that the corrective work had not been completed and Investigator Melton forwarded the matter to the Registrar’s legal area for issuance of a citation.
9. On October 8, 2019, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).
10. On October 22, 2019, Respondent submitted a Written Answer to Citation and Complaint in which Respondent denied all the allegations and asserted that Complainant had prevented Respondent from being able to access the property and complete the project.
11. On December 12, 2019, counsel for Respondent notified the Registrar that the parties had participated in a settlement conference wherein the parties agreed to a continuance of the scheduled hearing so that Respondent would be given an opportunity to “complete all of the work set out in the Directive.”
12. By letter dated March 24, 2020, counsel for Respondent notified the Tribunal and the Registrar that he had been directed to cease any further appearances and that Respondent would “not be participating in or contesting the allegations any further in these proceedings.”
13. At hearing, Complainant presented photographs, other evidence, and sworn testimony that demonstrated (a) the project was not completed and (b) that Respondent had not complied with the Directive by completing the work set forth in the Directive.
14. Complainant testified that she did not fire Respondent but that she did tell him/his worker she was not happy with the work that was being done and the work that was not being finished. Complainant indicated that her fiancée and Respondent “had words” one day and that she did ask Respondent to leave the property that day to avoid a higher level of dispute. Later, Respondent requested to have some more work performed in October of 2018 and Complainant did request that Respondent wait until the rain “let up.” As the holidays approached, Complainant reached out to Respondent to schedule work on the project; Complainant testified that Respondent said he was not going to come back and work on the project.
15. Administrative notice is taken of Respondent’s License record on August 31, 2020. The Registrar’s License record reflects that Respondent’s License No. 303678 was revoked on May 28, 2020.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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. Therefore, Complainant established Respondent’s violation of A.R.S. § 32-1154(A)(1).
4. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards with respect to the items in the Directive. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
5. The evidence established that Respondent did not complete the corrective work following the written Directive being issued prior to the deadline in the Directive. Therefore, 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 No. 303678.
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 31, 2020.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors