ALJDEC decisions subject to certification as final

2019A-04145-CHC-ROC · Registrar of Contractors · 2020-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Creative Renovations LLC,

COMPLAINANT

Nyce Concrete Construction Inc.,

ROC License: ROC 319471, 170713,

RESPONDENT

No. 2019A-04145-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 24, 2020, 8:30 A.M.

APPEARANCES: Don Schatz, President, appeared on behalf of Complainant; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Nyce Concrete Construction, Inc., (Respondent), is the holder of License Numbers 319471 and 170713 issued by the Registrar of Contractors (Registrar).

2. On or about August 15, 2019, Creative Renovations, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with concrete foundation work performed by Respondent at a residence in Phoenix, Arizona.

3. After an inspection was performed by the Registrar on September 30, 2019, the Registrar issued a Directive, dated October 3, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 25, 2019, as follows:

Complaint Item 6: concrete placement out of level over 1.5” in some places.

Investigator’s Observation: Verified. Using level(s) I was able to measure areas out of level all the way up to 1.5”. The Respondent stated while they were pouring the Complainant and/or the Complainants crew moved grade pins to install 2x6 forms for the bathroom. The Respondent said when the grade pins were moved his pour was messed up. The Complainant did not make any comments about removing grade pins

to install the 2x6 bathroom forms. If the Respondent knew an issues existing with the grade pins being moved, he should have stopped to correct and/or stopped the pour.

Governing Rule: Workmanship Rule: ARS 32-1154 (A)(3), namely R4-9-108, Poor work not performed in accordance with professional industry standers [sic].

Complaint Item 13: concrete wash out not provided for driver – washed out in landscape.

Investigator’s Observation: Verified. I observed a pile of hard concrete “wash out” in the front yard area.

Governing Rule: Workmanship Rule: ARS 32-1154 (A)(3), namely R4-9-108, Poor work not performed in accordance with professional industry standers [sic].

4. When the foregoing items were not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated October 31, 2019, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar issued a Notice of Hearing on Contested Case (“Notice of Hearing”), dated December 12, 2019, that set a hearing for January 13, 2020, at 8:30 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about December 12, 2019, at its address of record.

6. The Notice of Hearing informed the parties that they “must attend the hearing.” The Notice of Hearing further advised of the procedure for changing the hearing date.

7. The scheduled hearing date was changed at the request of Complainant and rescheduled for February 10, 2020, at 9:00 A.M. The hearing was then rescheduled for March 10, 2019, at 9:00 A.M. at the request of Complainant. By Order dated March 19, 2020, the matter was set for a telephonic hearing. At the request of Complainant for an in person hearing, the hearing was rescheduled to March 25, 2020, at 9:00 A.M. By Order dated April 6, 2020, the matter was again set for telephonic hearing. After request from Respondent dated May 11, 2020, by Order dated May 13, 2020, the matter was rescheduled to June 24, 2020, at 8:30 A.M. On June 23, 2020, the parties were notified by email to remind them that the hearing scheduled for the next day would proceed telephonically.

8. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. After the scheduled time of the hearing and before the hearing began, Respondent was contacted by telephone at its telephone number of record and by email to advise it that the hearing was going to proceed. There was no answer or response from Respondent. Consequently, Respondent did not present any evidence at the hearing to defend its licenses.

9. Complainant presented the testimony of Don Schatz, President. Jim Dimond testified on behalf of the Registrar. The Tribunal took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings. 10. Jim Dimond on behalf of the Registrar testified that Danny Oen had been the original investigator on the case but had since left the Registrar’s office. He then testified as to the Directive and the Citation. He stated that even if the grade pins had been removed, as claimed by Respondent, Respondent should have ceased work. In that Respondent did not cease work, it accepted the condition of the work site.

11. Don Schatz testified on behalf of Complainant that Complainant did not remove the pins as alleged by Respondent. Rather, he stated that Respondent had set the exterior forms incorrectly below floor elevation. He further testified that Respondent did not contact him after the Directive was issued.

12. It appears that Respondent attempted to request a continuance immediately before or after the hearing was commenced. The request was denied by Order dated June 30, 2020.

13. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. According to the web site, on February 24, 2020, Respondent’s License Nos. 319471 and 170713 were suspended with a notation “Recovery Fund Payout.” It was further noted that in Registrar’s Case No. 2019A-00235-RFA-ROC with Respondent as the named Respondent therein, a Final Administrative Order and Decision, dated January 3, 2020, and effective February 12, 2020, was issued by the Registrar accepting, with minor modifications not herein relevant, the Administrative Law Decision, dated December 17, 2019, in which $2,828.57 was to be paid to the Complainant in that case from the Residential Contractors’ Recovery Fund. This suspended status of Respondent’s licenses and Respondent’s failure to appear at the subject hearing are considered as factors in aggravation of any determination of discipline.

CONCLUSIONS OF LAW

1. 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 hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).

2. The suspended status of Respondent’s licenses does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).

3. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

4. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following

3. Violation of any rule adopted by the registrar.

...

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.

6. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”

7. Complainant has presented sufficient evidence to demonstrate deficiencies in the work performed by Respondent and the failure on the part of Respondent to undertake corrective action. No evidence was presented to rebut Complainant’s evidence.

8. Complainant has established that Respondent’s licenses should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). Moreover, The Tribunal finds the length of Respondent’s license suspension status since February 2020 as an aggravating factor in determining discipline.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Nyce Concrete Construction, Inc.’s, License Numbers 319471 and 170713 are hereby revoked.

In the event of certification of this 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 the certification.

Done this day, July 13, 2020.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000