ALJDEC decisions subject to certification as final

2019A-03605-CHC-ROC · Registrar of Contractors · 2019-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wayne Montes de Oca,

COMPLAINANT

Minuteman Home Services LLC,

ROC License: ROC 242804, 290005, 251474, and 316190,

RESPONDENT

No. 2019A-03605-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 5, 2019

APPEARANCES: Wayne Montes de Oca, Complainant, appeared on behalf of himself. Ernie Merrill appeared on behalf of Minuteman Home Services, LLC, Respondent.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera

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FINDINGS OF FACT

Respondent was issued multiple Licenses by the Registrar of Contractors (“ROC”). On May 31, 2008, the ROC issued License No. 242804 for Specialty Dual CR-11 Electrical to Respondent. On April 30, 2014, the ROC issued License No. 290005 for Specialty Dual CR-37 Plumbing to Respondent. On February 6, 2009, the ROC issued License No. 251474 for Specialty Residential R-39R Air Conditioning and Refrigeration to Respondent. On October 31, 2017, the ROC issued License No. 316190 for General Residential B General Residential Contractor to Respondent. For all of the Licenses, Respondent’s address of record is 1533 North Alma School Road, Suite 7, Mesa, AZ 85201. Ernest Edward Merrill, Jr. is listed on the License as Qualifying Party and Member.

Pursuant to A.A.C. R4-9-17, Administrative Notice is taken of Respondent’s prior License records as reflected on the ROC’s public website on December 5, 2019. Such prior License records reflect that all of Respondent’s Licenses are currently active. Under License No. 242804, Respondent has one disciplined case by the ROC and one resolved/settled case by the ROC. The record also reflects that there is one open complaint against Respondent’s License, which is presumed to be related to this matter. Under License No. 290005, Respondent has one disciplined case by the ROC. Under License No. 251474, Respondent has one disciplined case by the ROC and one resolved/settled case by the ROC. Under License No. 316190, Respondent has one disciplined case by the ROC. Respondent has active surety bonds issued through RLI Insurance Company, for License Nos. 290005, 251474, and 316190 and through Suretec Insurance Company for License No. 242804.

On or about May 23, 2019, Complainant entered into a written contract whereby Respondent agreed to install three ceiling fans and six light fixtures at Complainant’s residential home located at 908 North Sailors Way, Gilbert, AZ 85234 for the sum total of $1,100.00. The project commenced on June 4, 2019, and stopped on June 6, 2019. Complainant did not pay Respondent for any of the performed work because Complainant disputed the charge with his credit card company and stopped the payment.

On or about July 17, 2019, the ROC received a complaint for poor workmanship.

On or about July 22, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, providing proper notice to them, and advising them that an onsite review would be conducted at the project site by an ROC investigator on August 6, 2019. The Jobsite Inspection was rescheduled, due to scheduling conflicts, to August 13, 2019, at 4:15 p.m. Respondent was not present for the Jobsite Inspection because of the rescheduled date.

On August 13, 2019, ROC investigator Chris Fultz (“Investigator Fultz”) conducted an inspection of the work that had been done on the project to date and took approximately eight photographs of the property.

On or about August 22, 2019, Investigator Fultz issued a Directive From The Registrar (“Directive”) to Respondent because he substantiated Complainant’s allegation that Respondent exhibited poor workmanship on work that was not completed per industry standards. Specifically, Respondent was ordered to remediate complaint items 1, 2, and 3 via appropriate means. The compliance deadline for the Directive was September 12, 2019.

Prior to the compliance deadline, Respondent filed a response with the ROC. Respondent informed Investigator Fultz that it made several attempts to schedule a date to correct the issues and Complainant was uncooperative.

On or about September 19, 2019, the ROC issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. Respondent was given until October 16, 2019, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Respondent did not file an Answer.

On or about October 9, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on December 5, 2019 at 8:30 a.m.

Per the Citation, the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of A.R.S. § 32-1154(A)(3)-R4-9-108. (“Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108.”).

Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure 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. 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.”).

HEARING EVIDENCE

Investigator Fultz testified to the results of his investigation. Investigator Fultz opined that while Respondent insinuated that Complainant denied it access, the communication between Complainant and Respondent ultimately “broke down.”

Complainant testified that prior to filing the Complaint, there were electrical issues discovered by Respondent. Respondent told Complainant there would be additional charges to fix the issues. Complainant refused to pay Respondent. Complainant sent photos of the electrical issues to Ernie Merrill, owner of Respondent. Mr. Merrill commented on the photos but did not do anything.

On his own, Complainant researched the electrical issues and learned that he needed a permit for the electrical work that needed to be fixed. Complainant went to the City of Gilbert, obtained a permit, and informed Respondent. Respondent disagreed with Complainant that a permit was needed. Complainant stopped the project and wanted his money back. As a result, he filed the Complaint with the ROC and contacted his credit card company to dispute the amount he paid Respondent to stop the payment.

After the Directive was issued, Complainant acknowledged that he received Respondent’s requests to come and correct the issues. However, due to Complainant’s schedule and Respondent’s schedule, there were no dates that matched. When Complainant informed Respondent that Complainant’s wife would be present, Respondent told Complainant that only Complainant could be present because he was the one who signed the contract. Complainant purposefully scheduled the entire project during the summer so that he could be present when school was out because he was a school teacher. Thus, when the compliance date coincided with the school year, Complainant was unable to be present on all occasions.

Complainant acknowledged that, in the end, he did not want Respondent in his home due to the fact that Respondent kept denying that Complainant needed a permit and that Complainant believed Respondent’s presence would create a contentious and stressful environment.

Complainant argued that the ceiling fans and light fixtures were installed incorrectly. One of the light fixtures fell down, due to a poorly installed base, after Respondent left Complainant’s home. During the entire duration of the project Mr. Merrill never once came to his house to observe any of the issues.

At hearing, Mr. Merrill testified that he learned of the issues when the Directive was issued. Mr. Merrill acknowledged that he never went to Complainant’s home. Complainant never paid Respondent for any work done and Complainant benefitted from work done by Respondent. Mr. Merrill argued that permits were not required for projects such as this.

Following the Directive, Respondent made many attempts, via phone and mail, to contact Complainant and correct the respective issues. Mr. Merrill acknowledged that there were scheduling conflicts and that he wanted Complainant to be present because Complainant signed the contract. Mr. Merrill also acknowledged that Respondent could have come to Complainant’s home when Complainant was present but failed to do so.

CONCLUSIONS OF LAW

The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 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).

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.”

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.”

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 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 ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

Complainant established by a preponderance of the evidence that Respondent failed to properly install the ceiling fans and light fixtures when one of the light fixtures completely fell down and the when the ceiling fans were missing parts. Complainant established that Respondent failed to complete the project in a workmanlike manner when Respondent did not correct any of those issues prior to the Directive deadline. Thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C R4-9-108.

Furthermore, Complainant established that Complainant specifically contracted with Respondent during the summer to fit his schedule as a school teacher. The hearing evidence showed that while both parties made attempts to schedule corrective work, Respondent insisted that Complainant, not Complainant’s wife, be present when Respondent performed the work. The hearing evidence also showed that Respondent insinuated to Investigator Fultz that Complainant denied it access and was unable to perform any corrective work.

While denial of access constitutes a valid justification for failing to comply with a written directive of the ROC, in this case, Respondent failed to establish by a preponderance of the evidence that Complainant denied it access to the property. Even though Respondent attempted to contact Complainant and was willing to correct the issues, Respondent failed to go Complainant’s house, when Complainant was available, and comply with the Directive. Thus, Respondent’s failure to comply was in violation of Ariz. Rev. Stat. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 242804, 290005, 251474, and 316190 for a period of three (3) days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum of $500.00, in certified funds, 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)(7), 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, December 23, 2019.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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