ALJDEC decisions subject to certification as final

2019A-05593-CHC-ROC · Registrar of Contractors · 2020-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Beverly J. DeMember,

COMPLAINANT,

v.

Arizona Restoration Builders LLC,

ROC License: ROC 272988,

RESPONDENT.

No. 2019A-05593-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 20, 2020

APPEARANCES: Complainant Beverly J. DeMember appeared on behalf of herself. No one appeared on behalf of Respondent Arizona Restoration Builders, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On or about July 1, 2019, Complainant Beverly J. DeMember and

Respondent Arizona Restoration Builders, LLC (Arizona Restoration) entered into a residential remodeling contract.

On or about September 1, 2019, Arizona Restoration started work under the

contract.

On or about November 8, 2019, the Arizona Registrar of Contractors

(Registrar) received a complaint from Ms. DeMember alleging poor and incomplete work on the part of Arizona Restoration. Ms. DeMember listed an individual named Kevin Kane as the person representing the license.

On or about December 9, 2019, Registrar Investigator Phil Jaegge conducted

a job site inspection.

On December 10, 2019, Investigator Jaegge issued a Directive to Arizona

Restoration. The December 10, 2019 Directive provided, in relevant part, 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 December 27, 2019.

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: Project not finished and contract was for 20 - 30 day not counting weekends

Investigator’s Observation: Upon inspection at this JSI I observed that the project as shown to me by the Complainant was indeed left unfinished in many areas.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 2: Electrical not finished

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant many of the outlets, switch devices and fixtures were either not installed or not completed.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 3: Vanities not finished

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant neither of the 2 bathrooms had their vanities installed and further the vanities were not onsite.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 4: Cabinets in kitchen not in

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant the kitchen did not have any cabinets installed and further the cabinets were not onsite.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 5: Painting not done

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that several of the rooms did in fact have the finished paint applied to the ceilings and trim however most of the wall paint was either primer only or not painted at all.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 6: Bathroom tile done poorly; broken tile, lobsided tile.

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that the shower surround tile work had both cooked tile and also some chipped tile was noted.

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

Complaint Item 7: Fireplace not done.

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that the tile work on the hearth and sides top of the Fireplace surround had not been started and also the Fireplace mantle had not been installed. There did appear to be some material in the living room that was to be used for the mantle however the tile for the Fireplace was not onsite.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 8: Fan in living room not replaced - workers destroyed the original.

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant the living room fan was in a pile laying in the fireplace.

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

Complaint Item 9: Plumbing not done

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that none of the finished sinks in either of the bathrooms were installed, one of the two toilets was not installed (the toilet that was installed was not 100% completed - the mounting bolts were missing) and the kitchen sink had not been installed. Furthermore the sinks, faucets for the project were not onsite.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

Complaint Item 10: Dining room chandelier gone missing-he doesn't know what happened to it!

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that the dining room chandelier had not been installed and was not onsite. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 11: Master closet not done.

Investigator’s Observation: Upon inspection at this JSI I observed as shown by the Complainant that the master closet had not had the closet kit expected installed and furthermore the closet kit/materials were not onsite.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)

6. Arizona Restoration did not correct the items listed in the Directive by the

due date.

7. On or about January 9, 2020, the Registrar issued a Citation against Arizona Restoration’s license. Through the Citation, the Registrar alleged that Arizona Restoration may have violated Ariz. Rev. Stat. section 32-1154(A)(1); Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

8. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

9. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Arizona Restoration.

10. Arizona Restoration filed a timely answer to the Citation alleging that

Ms. DeMember did not contract with Arizona Restoration, but with Kevin Kane.

11. On March 17, 2020, the Registrar issued a Notice of Hearing setting the

matter for hearing on April 20, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

12. A hearing was held on April 20, 2020.

13. At hearing, Ms. DeMember testified on behalf of herself. Ms. DeMember expressed that Arizona Restoration never finished the project and performed poor work.

14. Investigator Steve Nelson provided testimony regarding Investigator

Jaegee’s job site inspection and issuance of the Directive. Investigator Nelson explained that he reviewed the website of the Arizona Corporation Commission (Commission) on the day of the hearing. Investigator Nelson explained that the Commission’s website showed that Kevin Kane was a member of Arizona Restoration Builders at the time of Arizona Restoration’s contract with Ms. DeMember.

15. No one appeared on behalf of Arizona Restoration at the hearing on April 20, 2020. Arizona Restoration did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. Consequently, the matter was convened in Arizona Restoration’s absence. Arizona Restoration did not present any evidence to defend its license.

16. Administrative notice is taken of Arizona Restoration’s license history. According to the Registrar’s website on May 11, 2020, Arizona Restoration’s license was issued on May 12, 2011, and is suspended. There are two open complaints against Arizona Restoration’s license. Arizona Restoration’s license has been disciplined once.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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 section 5 (1960).

3. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

4. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

5. The undisputed evidence established that Arizona Restoration abandoned the contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar suspend License No. 272988 of Arizona Restoration Builders, LLC for three calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, May 11, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors