ALJDEC decisions subject to certification as final

2020A-00566-CHC-ROC · Registrar of Contractors · 2020-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anne Mezzapelle Cacace,

COMPLAINANT,

ATR Construction LLC,

License No. ROC 275650,

RESPONDENT.

No. 2020A-00566-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2020

APPEARANCES: Greg Robinson, Esq. appeared on behalf of Complainant Anne Mezzapelle Cacace. Andrew Rich appeared on behalf of Respondent ATR Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

Respondent ATR Construction LLC (ATR) holds License No. 275650, issued by the Arizona Registrar of Contractors (Registrar).

Andrew Rich is the qualifying party for ATR.

On or about August 28, 2019, Complainant Anne Mezzapelle Cacace and ATR entered into a contract wherein ATR would add a garage to Ms. Cacace’s home (contract).

On or about November 18, 2019, ATR started work.

On or about December 20, 2019, ATR stopped work.

On or about February 3, 2020, the Registrar received a complaint from

Mr. Cacace alleging poor workmanship and abandonment on the part of ATR.

On or about March 24, 2020, Investigator David Fagerburg conducted a

job-site inspection.

On or about March 6, 2020, the Registrar issued a Directive to ATR that

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 Wednesday 3-25-2020.

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:

Compliance Item 2: He hired sub-contractors that were not qualified concrete & framing inspections failed. Framing contractor did not build frame according to blue prints.

Investigator’s Observation: I was able to verify that the framing and concrete inspections failed and the work needs to be corrected to satisfy the county building authority inspections.

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

Compliance Item 4: Very poor workmanship -

Investigator’s Observation: The existing CMU block wall is damaged, the front fascia was cut too short, the STHD 14 anchors are damaged per building inspector and not in the correct location at the CMU stem wall, at least 1 bottom plate anchor bolt does not have a full threaded nut and the wall between the existing home and the addition is installed on top of floor tile. I was able to verify that the workmanship items presented by the complainant do not meet workmanship standards and need to be corrected.

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

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item 1: Contractor accepted $14,000.00 deposit – 11 days later contractor told us he did not have money for supplies – he spent the money on another job –

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Governing Rule: No Action

Compliance Item 3: None of the contractors were supervised or monitored –

Contractor was never on site –

Investigator’s Observation: The ROC does not have jurisdiction over how a contractor operates their business. This is a statement made by the complainant that does not imply poor workmanship.

Governing Rule: No Action

ATR did not comply with the Directive.

On or about March 31, 2020, the Registrar issued a Citation against ATR’s license. Through the Citation, the Registrar alleged that ATR may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3), and Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke ATR’s license.

ATR filed a timely appeal to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

A hearing was held on July 20, 2020.

At hearing, Complainant presented the testimony of John R. Mezzapelle.

Investigator Fagerburg testified regarding his investigation of the compliant and the issuance of the Directive. Andrew Rich testified on behalf of ATR.

Rich did not dispute that ATR failed to comply with the Directive.

However, Rich asserted that he did not receive the Directive. Rich stated that he would have complied with the Directive if he would have received the Directive. Rich expressed that he cares about his license. However, Rich was aware of the complaint and the job site inspection.

Rich explained that he first learned of the Directive when speaking with

Investigator Fagerburg on March 26, 2019. Investigator Fagerburg explained to Rich that the Directive expired the previous day.

Rich testified that he did not receive the Directive through the mail

because he moved at some time between the end of March and the beginning of April of 2019. Rich explained that he began having his mail forwarded at the end of February 2019. However, Rich did not update ATR’s address with the Registrar prior to March 26, 2019. Rich did not forward mail specifically for ATR with the post office. Rich testified that he relied upon emails from the Registrar to receive information regarding the complaint. Rich stated that he did not receive the Directive by email.

Rich testified that he received a message from John Mezappelle directing

him not to come back to his property and trespass. However, Rich did not provide information regarding the date of the purported message. Rich testified that he would not have done additional work without first receiving proper payment from

Ms. Mezappelle.

Rich stated that he properly constructed the garage based on the

agreed upon contract and drawings. Rich also testified that he was going through a divorce.

John Mezapalle is the son of Ms. Mezappelle. Due to health reasons,

Ms. Mezappelle was unable to appear at the hearing. Mezapelle learned of his mother’s contract with ATR at some time between late October and early November of 2019.

Mr. Mezappelle explained that ATR abandoned the job and performed

poor work under the contract.

Investigator Fagerburg explained that Rich admitted that he found the

Directive in his e-mail during his conversation with Rich on March 26, 2019. Investigator Fagerburg explained that complaint items 2 and 4 were substantiated mostly because ATR failed city inspections.

I find Investigator Fagerburg’s testimony to be credible.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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 preponderance of the evidence showed that the issues found by

Investigator Fagerburg demonstrate that ATR failed to construct the garage addition in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

5. The preponderance of the evidence showed 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 275650 of ATR Construction, LLC for three 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 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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-137160-45720000Done this day, August 10, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000