ALJDEC decisions subject to certification as final

2019A-05435-CHC-ROC · Registrar of Contractors · 2020-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tam Minh Nguyen,

COMPLAINANT

Hardpak Holdings LLC,

ROC License: ROC 266817

RESPONDENT

No. 2019A-05435-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 11, 2020

APPEARANCES: Complainant Tam Minh Nguyen appeared on his own behalf. Respondent Hardpak Holdings LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Hardpak Holdings LLC (Respondent) is the holder of License No. 266817 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 8, 2018, Tam Minh Nguyen (Complainant) signed a contract with Respondent for the injection of open cell foam in the exterior walls of his home.

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

The Registrar assigned the complaint to Investigator Wes Ellington. After a jobsite inspection, Investigator Ellington issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified 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 your compliance with this Directive prior to 5:00 p.m. on January 2, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: Kasi was contracted to inject open cell foam in all exterior block walls. Some wall cavities are not completely filled. Salesperson and owner were contacted and have not responded since 9/26/2019.

Investigator’s Observation: The Complainant walked me around the home showing the areas where the Respondent had drilled and injected the foam. Many areas are not filled completely as described by the Complainant. This will need to be corrected by the Respondent.

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

Following the issuance of the written directive, Respondent made no attempt to contact Complainant to perform the corrective work. After the deadline in the directive expired, Investigator Ellington was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on March 11, 2020. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record and emailed a copy to the email address of record.

A hearing was held on March 11, 2020. Complainant testified on his own behalf.

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 Ellington testified that some of the mail sent to Respondent had been returned, but that he had sent the directive to Respondent at its mailing and email addresses. Investigator Ellington also noted that licensees were required to update their addresses with the Registrar. Investigator Ellington stated that Respondent never made any allegation that it was denied access to the property to complete the repairs ordered in the directive.

Complainant testified that sometime after the work was done, some of his light switches stopped operating properly. Upon inspection, Complainant realized that the foam in the walls did not extend to the full height of the wall. Similarly, Complainant had to replace the doorbell and when he removed the existing doorbell, there was no foam in that area of the wall. Also, when Complainant installed a new air conditioner, he had to drill new holes in the wall and discovered there was no foam at least two inches down or eleven inches up from the hole. Complainant acknowledged that Respondent contacted him after the deadline in the directive expired to complete some corrective work, but the work was never fully completed.

Administrative notice is taken of Respondent’s prior License record on March 27, 2020. Such prior License record reflects that Respondent’s License No. 266817 was first issued on August 11, 2010, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

The copies of the Notice of Hearing that the Registrar sent to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued prior to the deadline in the directive. 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. 266817 for a period of five 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.

-54864001

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-137160-45720000Done this day, March 30, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000