ALJDEC decisions subject to certification as final

2019A-04401-CHC-ROC · Registrar of Contractors · 2020-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christian Taylor Elrod,

COMPLAINANT

Dumac LLC,

ROC License: ROC 303678,

RESPONDENT

No. 2019A-04401-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 24, 2020.

APPEARANCES: Christian Taylor Elrod, Complainant, appeared telephonically on his own behalf. Dumac LLC, Respondent, did not appear.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera

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FINDINGS OF FACT

On or about March 11, 2016, the Registrar of Contractors (ROC) issued License No. 303678 for General Dual KB-2 Dual Residential and Small Commercial to Dumac LLC (Respondent). Respondent’s address of record for the license is 2633 East Indian School Road, Suite 230, Phoenix, AZ 85016-6761. Juan Duran is listed on the license as Qualifying Party and Member.

Pursuant to Arizona Administrative Code (A.A.C.) R4-9-17, administrative notice is taken of Respondent’s prior license record, for License No. 303678, as reflected on the ROC’s public website on March 24, 2020. Such prior license record reflects that Respondent’s license is suspended. Additionally, the record reflects the following message, “[t]his contractor is not able to contract with this license at this time. This contractor may be operating with other current licenses.” The record also reflects that there are two resolved/settled cases and five open complaints against Respondent’s license, one of which is presumed to be related to this matter. There is no surety bond information.

The record also reflects that Respondent has another license of record under License No. 260263 for Specialty Dual CR-61 Carpentry, Remodeling and Repairs. Such prior license record reflects that Respondent’s License No. 260263 is expired. Such prior license record reflects that there are no pending, disciplined, or open cases. There is an active surety bond with State Farm Fire and Casualty in the amount of $3,500.00.

On or about February 11, 2018, Christian Taylor Elrod (Complainant) entered into a written contract agreement whereby Dumac LLC (Respondent) agreed to construct a house addition, remodel the home, and remodel the pool at the address of 2523 East Campbell Avenue, Phoenix, Arizona, 85016. The total contract amount was $193,500.00. The project commenced on or about February 12, 2018, but was not completed. Complainant paid Respondent a total of $188,800.00.

On or about August 29, 2019, the ROC received a Complaint alleging abandonment.

On or about September 12, 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 October 24, 2019 at 9:00 a.m.

On October 24, 2019, ROC investigator Lisa Melton (Investigator Melton) conducted an inspection of the work that had been done on the project to date and took several photographs. All parties were present at the Jobsite Inspection.

On or about November 25, 2019, Investigator Melton issued a Directive From The Registrar (Directive) to the parties because he substantiated Complainant’s allegation that Respondent’s work was incomplete and that its work fell below workmanship standards. Specifically, Respondent was ordered to remediate complaint items 7-8, 10-11, and 13-19 via appropriate means. The compliance deadline for the Directive was December 16, 2019.

On or about January 8, 2020, the ROC issued a Citation to Respondent for alleged violations of Arizona Revised Statute (A.R.S.) §§ 32-1154(A)(1); 32-1154(A)(2)(b); 32-1154(A)(3) and 32-1154(A)(22), and A.A.C. R4-9-108. Respondent was given until January 23, 2020, to respond with its Answer or face discipline pursuant to A.R.S. §§ 32-1154(A)(22) and 32-1155.

On or about January 23, 2020, Respondent filed its Answer to the Citation. In its Answer, Respondent was confident it could resolve all disagreements and move forward with the completion of the project despite a shortage of labor.

On or about February 14, 2020, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for a hearing on March 24, 2020.

The Registrar issued a Notice of Hearing to Respondent, at its address of record, setting the hearing for March 24, 2020. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Melton did not appear at the hearing.

Complainant testified on behalf of himself and presented the testimony of his wife, Shaayna Elrod.

HEARING EVIDENCE

Complainant testified that he contracted with Respondent to remodel his house and pool and build a 300 square foot addition to the back of the house. He stated that he paid Respondent a total of $188,000.00. Respondent failed to finish the drywall, the bathrooms, the electricity, the appliances, the cabinet, the doors, the sinks, the floors, the garage, and the exterior paint. Respondent left rough concrete floors and rough plumbing.

Additionally, Respondent never finished the pool remodel. Respondent failed to install equipment, the pebble tec, and the water lines.

After the Directive, Respondent fixed a few items but did not complete the project. After the Citation, Respondent informed Complainant that if Complainant wanted more work done, Complainant would have to pay more money.

Ms. Elrod testified that Respondent lied about the inspections and deadlines. Respondent told Complainant that various items on the project passed inspection. However, after a website check, Ms. Elrod learned that numerous inspections had failed. When she asked Juan Duran, Respondent’s owner, about the failed inspections, he became evasive and stated that he was working on it.

After the Directive was issued, Mr. Duran put together a plan. Respondent did a small amount of work on the stucco. Even though one of the items on the project finally passed inspection, most of the work was still incomplete.

In December, 2019, Mr. Duran pressured Ms. Elrod to close the case with the ROC because he was losing business. Ms. Elrod opined that the project became emotionally stressful because Mr. Duran was hot tempered and sent Complainant and Ms. Elrod hostile text messages. The experience was more painful because the house was their primary residence and it was inhabitable.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 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 the hearing. See A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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).

A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

A.R.S. § 32-1154(A)(2)(b) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, departure from or disregard of “[a] building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.”

A.A.C. 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.”

A.R.S. § 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.”

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

A.R.S. § 32-1154(E) holds, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

The evidence is undisputed that Respondent’s work resulted in poor workmanship in violation of A.R.S. § 32-1154(A)(3)-R4-9-108.

There was evidence that Respondent abandoned the project and left the house addition and the pool unfinished. Respondent failed to complete the project without legal justification in violation of A.R.S. § 32-1154(A)(1).

Furthermore, Complainant established that there were numerous failed inspections. Respondent failed to provide Complainant with proof of the building inspections or its results. Thus, Respondent was in violation of A.R.S. § 32-1154(A)(2)(b).

Lastly, Complainant established that Respondent failed to take the appropriate corrective action following a written Directive from the ROC by not completing the items on the Directive. Thus, Respondent was in violation of A.R.S. § 32-1154(A)(22).

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Dumac LLC’s License No. 303678.

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)(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, April 6, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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