ALJDEC decisions subject to certification as final

2019A-05203-CHC-ROC-RHG · Registrar of Contractors · 2020-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chris A Mellon,

COMPLAINANT,

v.

Alfredo’s Drywall LLC,

License No. ROC 284389,

RESPONDENT.

No. 2019A-05203-CHC-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 06, 2020 at 9:00 AM.

APPEARANCES: Chris Mellon (“Complainant”) appeared on his own behalf with David Fagerburg as a witness. No appearance(s) by or on behalf of Alfredo’s Drywall LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

According to the Registrar’s public website, on or about April 11, 2013, the Registrar issued License No. 284389, specialty dual CR-10 drywall contracting license, to Respondent. Edwin Alfredo Perdomo Mejia is the Qualifying Party and Member on this license. Norma Alicia Mejia is also listed as a Member on the license. Respondent’s address of record on the license is 321 S 172nd Dr. Goodyear, Arizona 85338-6074.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. The license has not previously been disciplined by the Registrar. There is one open complaint against the license, which is presumed to be related to this matter. The license has an active $6,750.00 surety bond issued by RLI Insurance Company effective January 09, 2019.

On October 15, 2019, Complainant filed a complaint against Respondent with the Registrar alleging poor workmanship and abandonment of a residential kitchen drywall project. Complainant included copies of photos taken of the underlying project.

On October 28, 2019, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on November 29, 2019, at 12:30 p.m. On November 26, 2019, the Registrar issued a Rescheduled Jobsite Inspection Notification letter to the parties, advising that their onsite review was rescheduled for December 11, 2019, at 2:30 p.m.

On November 29, 2019, Registrar investigator David Fagerburg (“Investigator Fagerburg”) inspected the work that had been done on the project to date and took 9 photographs of the project. Respondent was in attendance. When he was finished, Investigator Fagerburg drafted Jobsite Inspection Notes.

On December 24, 2019, Investigator Fagerburg issued a Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s abandonment allegation, and also determined that the work Respondent had performed on the project failed to meet minimum workmanship standards. Respondent was put on notice that he had until 5:00 p.m. on January 14, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On January 16, 2020, Investigator Fagerburg issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on January 21, 2020, at 10:30 a.m.

On January 21, 2020, Investigator Fagerburg inspected the jobsite and took 11 photographs. Respondent was not in attendance. When he was finished, Investigator Fagerburg drafted Compliance Jobsite Inspection Notes.

On January 22, 2020, Investigator Fagerburg escalated Complaint 2019-05203 to the Registrar’s legal department with a Citation recommendation.

On January 27, 2020, the Registrar issued a Citation and Complaint to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); a violation of Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until February 11, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155(C).

On February 10, 2020, the Registrar received Respondent’s Answer whereby Respondent requested a Settlement Conference.

On May 08, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 06, 2020. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

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

Complainant testified on his own behalf and called Investigator Fagerburg as a witness. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive facts are as follows:

Complainant owns residential property located at 23214 N 95th Pl Scottsdale, Arizona 85255.

In or around Fall of 2019, Complainant decided to remodel his kitchen

On or about September 03, 2019, Complainant and Respondent entered into a contractual agreement whereby Respondent agreed to complete a drywall project for Complainant. Complainant agreed to pay Respondent the sum total of $900.00 for materials and labor relating to project.

Complainant hired another contractor to perform the paint work on the project.

On September 12, 2019, work on the project commenced. The job was completed on October 03, 2019.

Complainant issued a $900.00 check to Respondent for the project, and paid another $200.00 upon request to cover the cost of additional materials and labor.

Respondent was present for Investigator Fagerburg’s November 29, 2019, jobsite inspection and received a copy of his resulting Directive on or about the following day. Although Respondent made an attempt to remediate his poor workmanship, his efforts did not meet the registrar’s minimum workmanship standards. Respondent did not comply with the Registrar’s Directive by the January 14, 2020, compliance deadline.

The parties did not enter into a financial agreement in lieu of Respondent completing remediations as ordered by the Registrar’s Directive.

On an unknown date Complainant painted over Respondent’s drywall to seal off the dust and make the project area habitable.

Respondent obtained 2 drywall remediation quotes from licensed contractors for $2,800.00 and $5,800.00, and also obtained a painting quote for $1,000.00.

Complainant’s project has not been completed and is currently on hold.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

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

The Registrar 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 Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

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. 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)(22) provides, 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.”

Ariz. Rev. Stat. § 32-1154(E) provides, 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 provides that “[n]o 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 material facts in this case are clear.

It is undisputed that Complainant paid the full price of the underlying contract. It is also undisputed that Respondent the work Respondent performed on the project did not meet the Registrar’s minimum workmanship standards. It is further undisputed that the Registrar’s post investigative Directive required Respondent’s full compliance by January 14, 2020, and that Respondent did not timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely and completely remediate all complaint action items outline in the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that Respondent failed to adhere to a Registrar Directive, and had no affirmative defense(s) for doing so.

Because Respondent did not meet minimum workmanship standards as required by Ariz. Admin. Code R4-9-108, Complainant has established a violation of Ariz. Rev. Stat. § 32-1154(A)(3).

Because Respondent failed to take appropriate corrective action after the Directive was issued by the Registrar for the underlying project, Complainant has established a violation of Ariz. Rev. Stat. § 32-1154(A)(22).

As such, Complainant has also established grounds for the Registrar to take disciplinary action against Respondent’s license and impose a civil penalty against Respondent pursuant to Ariz. Rev. Stat. § 32-1154(E).

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, if any is permitted, 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 Final Order in this matter Respondent Alfredo’s Drywall LLC, ROC License No. 284389, be suspended for two (2) days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $1,000.00 in certified funds as a civil penalty.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Order, the Registrar shall 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 Ariz. Rev. Stat. § 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.

Done this day, July 20, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors