ALJDEC decisions subject to certification as final

2019A-06362-CHC-ROC · Registrar of Contractors · 2020-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gordon Keith Brown,

COMPLAINANT

Great Concept Enterprises LLC,

License No. 316975,

RESPONDENT

No. 2019A-06362-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 23, 2020

APPEARANCES: Complainant, Gordon Keith Brown appeared via Google Meet. Pablo Cesar Gonzalez Hurtado appeared in person on behalf of Respondent, Great Concept Enterprises, LLC. Elis Castillo appeared in person as the Spanish Interpreter for Mr. Hurtado. Christopher Fultz, Inspector for the Registrar of Contractors, also appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Great Concept Enterprises, LLC (Respondent) is the holder of License No. 316975 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 12, 2019, Gordon Keith Brown (Complainant) and his wife signed a contract with Respondent to install granite countertops in their residence. Work was completed on or about October 11, 2019.

On or about December 27, 2019, the Registrar received a Complaint from Complainant alleging poor work with respect to the project as well as accusing Respondent of stealing granite.

The Registrar assigned the complaint to Investigator Christopher Fultz. The inspection was performed on January 22, 2020. During the inspection, Mr. Hurtado was told he could not enter the property. During the inspection, Complainant revealed to Mr. Fultz that he believed that Mr. Hurtado had appropriated the unused granite for his own purposes. Complainant also provided a video of their son negotiating for the sale of the granite with Mr. Hurtado as well as various photographs of Complainant’s granite at Mr. Hurtado’s shop after completion of the project.

Based upon this information, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(6).

Mr. Fultz testified that once he was aware that the Sheriff’s office was involved, the only possible charge against Respondent would be under A.R.S. § 32-1154(A)(6), despite other workmanship claims by Complainant.

Further, Mr. Fultz testified that he believed the excess granite that was shown to him in the video and the pictures, which was found in possession of Respondent, was Complainant’s granite as it had a distinct pattern, one that he had not seen in a long time.

Finally, Mr. Fultz testified that Mr. Hurtado admitted he had the granite and that the remaining full slab’s serial number matched the purchase order.

Complainant testified that he purchased five slabs of granite from Arizona Tile. He and his wife, contracted with Respondent to install the granite in the kitchen. Complainant testified that it was intention to use the remaining granite in the master bathroom and that project may or may not be contracted to Respondent.

Complainant testified that once the job was completed, his wife inquired as to the rest of the granite. They were informed that there was nothing left and that it had crumbled.

Next, Complainant was informed by his cabinet installer that Mr. Hurtado had a full slab and a half at his shop. Complainant then testified that he drove to Respondent’s shop and he could see his granite from the road.

Complainant testified that he had his son go to Mr. Hurtado in an attempt to buy the granite. Complainant stated that Mr. Hurtado said he would sell it for around $700 which was about half of what it was worth.

Complainant testified that he made a report with the Maricopa County Sheriff’s office. Complainant and the Sheriff then went to Mr. Hurtado’s shop on or about December 23, 2019, and found the granite still in Mr. Hurtado’s possession.

In addition, Complainant testified that it was his intention to use the remaining granite for his master bathroom, and that he certainly wanted the unused granite returned. He stated that he and his wife asked several times about the granite, but the response was that there was none left.

Finally, Complainant testified that Mr. Hurtado intentionally manipulated the job for his personal benefit.

Mr. Hurtado testified that it was his typical business practice to purchase the granite with the client, but that he did accept to perform this job with the pre-purchased granite.

Mr. Hurtado testified repeatedly that the granite was not in good condition and had may cracks and other imperfections which is why Complainant received such a discounted price for the same.

Mr. Hurtado testified that because of the granite’s condition, it took him almost a day figure out how to install and match the same. Mr. Hurtado repeatedly testified that his work was done up to standards and that he was satisfied with his work and the efforts he put in to ensure the granite looked good because of the cracks.

Next, Mr. Hurtado testified that as to the one and a half slabs remaining, he said it was cracked and damaged so that it could not be used and put it aside to be sent out with the trash.

When the Sheriff came to the shop, Mr. Hurtado testified that he was shocked to see the granite outside because he had a co-worker do the removal and had assumed it was in the trash.

When approached with the video, Mr. Hurtado testified that he does not sell samples of granite, and that Complainant’s son was the only one talking.

Finally, Mr. Hurtado testified that if Complainant wanted his granite back, why he was not contacted about arranging for its return.

Administrative notice is taken of Respondent’s prior License record on July 24, 2020. Such prior License record reflects that Respondent’s License No. 316975 was first issued on January 2, 2018, and is current. Such prior License record also reflects that there is one open complaint, namely the present complaint, and there are no prior complaints 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).

A.R.S. § 32-1154(A)(6) states, “The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. For the purposes for this paragraph, “fraudulent act” means a material misrepresentation that a licensee makes, that is relied on by another person and that results in damage to that person or that person’s property.”

The evidence established that Mr. Hurtado still has the unused granite in his shop at the present time. While it may not have been Mr. Hurtado’s common business practice to use pre-purchased granite, he should have immediately contacted Complainant about what to do with the unused portion of granite even if it was cracked or damaged. He committed a material misrepresentation in stating that there was no granite left after the job was completed.

The question then turns on the harm to Complainant. Under the statute, Complainant has not been substantially injured. Upon information and belief, the granite was still available at Mr. Hurtado’s shop and he has offered for Complainant to retrieve it at any time. There was no evidence presented that Mr. Hurtado further damaged the granite, so presumably it is in the same condition as it was when it was first delivered to Mr. Hurtado. There was also no evidence presented by Complainant that he had to purchase replacement granite for the bathroom remodel. Thus, while there may have been the misrepresentation, there has been no damage to Complainant or to the property, if the granite still in Mr. Hurtado’s possession, is in the same or substantially similar condition that it was when it was delivered at the beginning of the project.

Therefore, based upon the above, Complainant has not established that Respondent violated of A.R.S. § 32-1154(A)(6), beyond a preponderance of the evidence.

RECOMMENDED ORDER

Based on the foregoing, it is recommended Complaint No. 2019-06362 be dismissed against Respondent.

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, August 6, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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