ALJDEC decisions subject to certification as final

2019A-04333-CHC-ROC · Registrar of Contractors · 2019-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia A. Price,

COMPLAINANT

Arizona Restoration Builders LLC,

ROC License: ROC 272988,

RESPONDENT

No. 2019A-04333-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 25, 2019

APPEARANCES: Complainant Patricia A. Price appeared on her own behalf. Kevin Kane, Owner, appeared on behalf of Arizona Restoration Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Arizona Restoration Builders LLC (Respondent) is the holder of License No. 272988 issued by the Arizona Registrar of Contractors (Registrar).

Sometime in June 2019, Patricia A. Price (Complainant) posted a kitchen remodel project on the website Thumbtack to find a contractor that could help with the project.

Kevin Kane, Respondent’s owner, went to Complainant’s home to discuss the project, and on or about July 1, 2019, sent Complainant a quote via email. Mr. Kane stated in the email that Respondent “would be able to get started by the end of this week if you would like to move forward. . . . As I mentioned, we would have 1 more meeting to get exact measurements and go over color and material selection.”

Complainant responded via email with a number of questions on the project. Mr. Kane offered to meet Complainant again to go over the bids.

On or about July 9, 2019, Complainant and Mr. Kane met again discuss the project.

On or about July 12, 2019, Complainant emailed Mr. Kane with additional questions and asked, “Was your project manager going to stop by with some cabinet or countertop samples?” and “Have you been able to redo the quote after meeting again this week?”

On or about July 15, 2019, Mr. Kane emailed Complainant “I will get Rudy out there tomorrow to show you samples if that will be ok?”

On or about July 18, 2019, Mr. Kane emailed Complainant an updated quote. Complainant replied, “When Rudy came by the other night, he said the upper cabinets would have to stay at 12”, anything over that would be custom, so I think I’ll keep them at 12” will that change the quote?” After Mr. Kane responded that the most recent quote included the sink, faucet, and 12” cabinets, Complainant replied, “Ok great! Let’s proceed then! What do you need from me and when can you begin?” Complainant replied again, “If the gas line will be $750 let’s go ahead and do that too.”

On or about July 19, 2019, Mr. Kane replied to Complainant’s email, “We can do the deposit and get them ordered. Right now we are looking at installation by end of next week if that works for you?” Complainant replied, “That sounds perfect. What day would you begin? I need to plan to be home because Jenn goes back to work next week.”

On or about July 20, 2019, Mr. Kane texted Complainant, “I am thinking we can do install next Friday. How did you want to do the first payment?” Complainant replied via text, “I can do a credit card for payment. Will that work? Will you remove the existing cabinets on Friday also?” and “Do you want to call me for payment?” Mr. Kane replied via text, “Rudy will give you a call here in a minute. I apologize. I’m installing a large glass shower and not at a stopping point.” Complainant replied, “OK no problem.”

On or about July 20, 2019, Complainant paid the cabinet company $3,833.00 via credit card directly as her down payment on the project.

On or about July 26, 2019, Complainant wrote a check to “Rodolfo Flores Campa” in the amount of $3,833.00 for “cabinets.”

After the project started, Complainant texted Mr. Kane with questions and concerns regarding the project on July 30, 2019, July 31, 2019, and August 2, 2019, but Mr. Kane did not respond to any of the text messages.

Complainant discussed the project with “Rudy” and stated Mr. Kane was not responding to her emails or text messages. “Rudy” offered to take care of hiring the plumber to install the gas line if Complainant gave him $400.00.

On or about August 2, 2019, Complainant wrote a check to “Rudolfo Flores” in the amount of $400.00 for “plumber.”

Complainant again texted Mr. Kane with questions and concerns regarding the project on August 6, 2019, but Mr. Kane did not respond.

On or about August 6, 2019, “Rudy” stated he would take care of completing the project given that Mr. Kane was not responding to Complainant’s communication attempts. “Rudy” provided Complainant with a tentative quote of what it would cost if he finished the project.

On or about August 6, 2019, Complainant wrote a check to “Rudolfo Flores” in the amount of $400.00 for “countertop.”

On or about August 10, 2019, when Complainant was unable to get any answers related to the project, she bought the sink and faucet herself at Home Depot at a cost of $557.00 rather than have Respondent provide it as required in the contract.

On or about August 29, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Phil Jaegge. After a jobsite inspection, Investigator Jaegge issued a written directive to Respondent providing that Respondent had until September 28, 2019, to complete the project.

Following the issuance of the written directive, Complainant and Mr. Kane had some discussions about settling the matter, but those discussions were not successful.

At or about 2:22 p.m. on September 27, 2019, Mr. Kane emailed Complainant with three different settlement scenarios. One involved performing some of the work in the contract with a partial cash settlement; one involved a total cash settlement; and one involved completing the work under the original contract. In the final option, Mr. Kane noted that he could try to get the cabinets over the weekend, but the countertops take a few extra days to get in, cut, and installed.

At or about 3:13 p.m. on September 27, 2019, Complainant replied that Mr. Kane had had plenty of time to resolve the directive and that she no longer had faith or trust in his work or his work and so she would not negotiate the price or extend additional time beyond the Registrar’s deadline.

After the deadline in the directive expired, Mr. Kane forwarded the email communications to Investigator Jaegge to explain why no corrective work had been performed. According to Mr. Kane, he went to Complainant’s home on September 24, 2019, to determine what work needed to be done and what the remaining balance was on the contract.

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; A.R.S. § 32-1154(A)(9); and A.R.S. § 32-1154(A)(22).

Investigator Jaegge testified that based on his review of the documents submitted, Mr. Kane repeatedly indicated that “Rudy” worked for Respondent and was acting on its behalf. Accordingly, Investigator Jaegge concluded that Complainant contracted with Respondent.

Complainant testified that Mr. Kane told her he had a direct line to the cabinet manufacturer and that was why his quote was substantially lower than other contractors. Complainant stated that Mr. Kane regularly referred to “Rudy” as Respondent’s project manager.

Jennifer Garwood, Complainant’s daughter, testified as to her observations of Mr. Kane and “Rudy” during the project. Ms. Garwood’s testimony was consistent with Complainant’s testimony.

Mr. Kane testified that he did send “Rudy” out to do measurements and design layouts. Mr. Kane alternatively stated that “Rudy” was his project manager and a new subcontractor. Mr. Kane acknowledged that “Rudy” was not Respondent’s employee and that he did not confirm that “Rudy” was a licensed contractor prior to engaging him as a subcontractor. Mr. Kane admitted “Rudy” was not a licensed contract. Mr. Kane asserted that because Complainant did not sign a physical copy of the contract, Respondent was not responsible for the project and Respondent could not have abandoned the project. Mr. Kane stated that Respondent was very busy with other projects and one of his guys was out with a hernia, so it was not worth his time to travel to Complainant’s home to perform the work.

Administrative notice is taken of Respondent’s prior License record on December 16, 2019. Such prior License record reflects that Respondent’s License No. 272988 was first issued on May 12, 2011, and is current. Such prior License record also reflects that there were two open complaints and no resolved/settled complaints or prior complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that “Rudy” was not a licensed contractor but Respondent was employing “Rudy” as a subcontractor. Therefore, Complainant established that Respondent aided and abetting an unlicensed person in violation of A.R.S. § 32-1154(A)(9).

The evidence established that Respondent did not attempt to complete the project following the Directive being issued. 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 suspend Respondent’s License No. 272988 for a period of five (5) days.

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.

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-137160-45720000Done this day, December 16, 2019.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000