FINACT2019A-04161-CHC-ROC-FinalAgencyAction-6842.pdf

2019A-04161-CHC-ROC · Registrar of Contractors · 2020-03-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Desert View Contractors LLC, Case No. 2019-04161 COMPLAINANT, Docket No. 2019A-04161-CHC-ROC v. Cyberlink Communications LLC, FINAL ADMINISTRATIVE License No. ROC 308702, DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject

an administrative law judge’s written decision. If the Registrar modifies or rejects that

decision, then the Registrar must provide written justification setting forth the reasons for the

modification or rejection of each finding of fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written

decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that

decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge’s decision, that

decision is the final administrative decision in this case and becomes effective on April 15,

2020.

Dated March 6, 2020.

By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail March 6, 2020 to: Respondent Cyberlink Communications LLC 6219 W Cheery Lynn Rd Phoenix, AZ 85033 Respondent’s Attorney Andrew J. Wenker, Esq. 8767 E Via de Commercio Ste 102 Scottsdale, AZ 85258 Complainant Desert View Contractors LLC 5021 N 55th Ave Ste 10 Glendale, AZ 85301 Complainant’s Attorney Mark D. Bogard Esq. 3200 N Central Ave, 20th Floor Phoenix, AZ 85012 Copy sent electronically this same date to: Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar Case No. 2019-04161/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 2.18.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Desert View Contractors, LLC, No. 2019A-04161-CHC-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE Cyberlink Communications, LLC, DECISION ROC License: ROC 308702, RESPONDENT.

HEARING: January 27, 2020 APPEARANCES: Alejandro Perez, Esq. appeared on behalf of Complainant Desert View Contractors, LLC. Andrew J. Wenker, Esq. appeared on behalf of Respondent Cyberlink Communications, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Cyberlink Communications, LLC (Cyberlink) holds Arizona Contractor’s License No. 308702. 2. Cyberlink’s qualifying party is Alex Romero. 3. On or about September 6, 2016, Complainant Desert View Contractors, LLC (Desert View) and Cyberlink, entered into contract wherein Cyberlink would install a Vantage System in a home located at 980 W. Villa Lindo Drive, Peoria, AZ (home). The home was owned by Desert View. 4. In September of 2016, Cyberlink installed the Vantage system in the home. The Vantage System was subsequently damaged. 5. Desert View paid Cyberlink $6,000 for materials to install a second Vantage system. 6. Cyberlink installed a second Vantage system in the home. 7. Desert View subsequently sold the home to a third party. 8. The third party complained to Desert View that the Vantage System was old and not under warranty. RECEIVED 2.18.2020 ROC LEGAL

9. On or about August 16, 2019, the Arizona Registrar of Contractors (Registrar) received a complaint from Desert View alleging that Cyberlink performed incomplete and fraudulent work in connection with new home residential construction contract. 10. On or about September 13, 2019, Registrar Investigator Phil Jaegge performed a job site inspection. Investigator Jaegge substantiated complaint item 2 and concluded that complaint items 1, 3, and 4 work not workmanship issues. 11. On September 23, 2019, Investigator Jaegge issued a DIRECTIVE. The September 23, 2019 DIRECTIVE provides, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of you compliance with this Directive prior to 5:00 p.m. on October 11, 2019.

Complaint Item 2: Vantage system installed by Cyberlink Communication was represented to be new and latest equipment (continued) - available at the time. Equipment is actually old (11 - l3) years old, which doesn't (continued) represent invoices and cost associated with new and latest equipment. Investigator's Observation: Upon inspection at this JSI I observed that per statements made by C & R this equipment had been installed a second time after the first pieces of equipment got damaged. However the second set of equipment installed is of a reconditioned nature, very old and not under any warranty. Governing Rule: Workmanship Rule: ARS $32-1 154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

12. The September 23, 2019 DIRECTIVE also provided that Complaint Items 1,

3, and 4 required no action by Cyberlink.

2 RECEIVED 2.18.2020 ROC LEGAL

13. Cyberlink did not correct Complaint Item 2. 14. On October 23, 2019, the Registrar issued a CITATION wherein the Registrar alleged that Cyberlink may have violated ARIZ. REV. STAT. sections 32- 1154(A)(3)(specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. sections 32-1154(A)(22). 15. Cyberlink filed a timey appeal to the October 23, 2019 CITATION. 16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 17. On December 26, 2019, the Registrar of Contractors, (Registrar), issued a NOTICE OF HEARING setting the above-captioned matter for hearing on January 27, 2020, by the Office of Administrative Hearings in Phoenix, Arizona. 18. A hearing was held on January 27, 22020. 19. At hearing, Desert view presented the testimony of Javier Munoz, a member of Desert View. Alex Romero testified on behalf of Cyberlink. Registrar Investigator Steve Nelson testified regarding Investigator Jaegge’s investigation of the complaint, job site inspection, and issuance of the September 23, 2019 DIRECTIVE. 20. Mr. Nelson opined that Cyberlink performed poor work when it failed to install a new system a second time because contractors are always expected to install new products which have a warranty. 21. Mr. Munoz testified that based on the material prices listed in the invoice, he believed that Cyberlink would install new materials. However, when Cyberlink installed the system the second time, Cyberlink only charged $6,000 for materials. Mr. Romero explained that Cyberlink and Desert View never and Mr. Munoz never agreed that Cyberlink would install a new Vantage system. Mr. Munoz expressed that he wanted the job finished. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 2. The burden of proof at an administrative hearing falls to the party

3 RECEIVED 2.18.2020 ROC LEGAL

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 4. The preponderance of the evidence does not show that Respondent performed poor work when it installed a second Vantage system that was not new and under warranty. The weight of the evidence showed that Investigator Jaegge concluded that Respondent performed poor work because the second system installed was reconditioned, very old, and not under warranty. However, the preponderance of the evidence does not show that Respondent agreed to install a new Vantage system the second time. Although Mr. Munoz testified that he believed due to the system would be new due to the price, his testimony I unconvincing because as the cost for materials for second installation was less than half of the cost for materials for the initial installation This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be dismissed. 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 is forty days after the date of that certification. Done this day, February 18, 2020.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

4