ALJDEC decisions subject to certification as final
2020A-01412-CHC-ROC · Registrar of Contractors · 2021-05-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nicholas Tarman
COMPLAINANT,
v.
Main Construction and Landscape LLC
License Nos. ROC 209358, 215939,
RESPONDENT.
No. 2020A-01412-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 12, 2021
APPEARANCES: T’shura A. Elias, Esq. appeared on behalf of Complainant Nicholas Tarman. No one appeared on behalf of Respondent Main Construction and Landscape, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Main Construction and Landscape, LLC (Main) holds License numbers 209358 and 215939, issued by the Registrar of Contractors (the Registrar).
2. On or about August 7, 2018, Complainant Nicholas Tarman and Main entered into a new home construction contract for the amount of $424,000.
2. On or about September 7, 2018, Main began construction.
3. On or about October 7, 2019, Main stopped construction.
4. On or about March 20, 2020, Mr. Tarman filed a complaint with the Registrar against Main alleging abandonment in connection with a new home construction contract. Mr. Tarman had paid Main $324,000 for the new home build.
5. Registrar Investigator Bob McQuien conducted an investigation into the complaint.
6. On May 26, 2020, Investigator McQuien conducted a job-site inspection.
7. On May 27, 2020, the Registrar issued a Directive against Main’s license. The Directive provided, in relevant part, as follows:
Dear Respondent:
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 June 15, 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: 3 - The contractor abandoned the project last November after we paid him the last early draw payment of 43,000. Upon receiving this payment, he immediately abandoned our project, only working an hour or two a week to try and keep us happy, and never any work that required material purchasing though, so it was really just for show and nothing really has been done on the project since November. The contractor has continued a never ending list of lies and broken promises to purchase the material we have paid up front for, with the last missed promise of ordering our windows being broken last Friday. He has not returned our phone calls or emails since then.
Investigator’s Observation: Project has been abandoned and confirmed with Contractor who advised he does not have money to complete project.
Governing Rule: Abandonment of a contract or refusal to
perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Compliance Item: 4 - The garage foundation shows substantial cracking and the expansion cuts are extremely sloppy.
Investigator’s Observation: Concrete has cracks throughout project, repairs on some have been attempted but to re crack. Contractor Take Corrective Action.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - The pool house patio slab is cracking pretty bad and Nick promised to demo and re-pour, which he had not completed.
Investigator’s Observation: Concrete has cracks throughout project, repairs on some have been attempted but to re crack. Contractor Take Corrective Action.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 6 - On one of the early draw payments Nick promised in return for our early draw payment he was going to give us 520' of perimeter wall for 21,000 as an addition to the contract. This included about 100' of retaining wall. He stated that in order to pour this retaining wall he was going to have to cut 4' of my neighbor’s dirt back to pour the walls footing. He got my neighbor to agree only on the condition that he would complete it quickly as my neighbor is selling his home. So nick proceeded to cut into my neighbor’s land by 4' only to get in an argument with his wall guy, resulting in the wall guy quitting that day. The wall footer has been exposed for over 60 days with Nick abandoning that portion of the project when his guy quit on him. I now have
the neighbors ready to sue me because he claims this exposed portion of his land is causing his house not to sell. Nick never even bothered finding another wall contractor, instead he said I should get bids, which I did. Of course all of
these bids were way higher than Nick had put in our contract so I really don't know what do to with the wall.
Investigator’s Observation: Cutaway has exposed possibility of failure of adjacent property’s integrity. Contractor Take Corrective Action
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - The rough framing has been exposed to the elements for over one year and it is showing signs of deterioration
Investigator’s Observation: Project has been left to weather without protection. Contractor Take Corrective Action.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
8. Main did not correct the items listed in the Directive by June 15, 2020.
9. On or about October 9, 2020, the Registrar issued a Citation against
Main’s license. Through the Citation, the Registrar alleged that Main may have violated Ariz. Rev. Stat. section 32-1154(A)(1). The Citation shows that if the Administrative Law Judge finds that the alleged charge is valid, the Registrar may suspend or revoke Main’s license.
10. Main filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings (the OAH) for an evidentiary hearing.
12. On November 9, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on December 9, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
13. A hearing was held on May 12, 2021.
14. At hearing, Mr. Tarman testified on behalf of himself. Investigator McQuien testified regarding his investigation of the complaint and the issuance of the Directive.
15. No one appeared on behalf of Main at the hearing on May 12, 2021.
No one filed a request to appear telephonically on behalf of Main. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Main through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Main did not present any evidence to defend its license.
16. Mr. Tarman explained that Main abandoned the project even after he had approximately 75% of the contract amount.
17. Administrative notice is taken of Main’s prior License record on May 25, 2021. Such prior License record reflects that License No. 215939, was first issued to Main on January 22, 2006, and is current. Such prior License record also reflects that one complaint has resulted in discipline against License No. 215939. Such prior License record reflects that License No. 209358 was first issued to Main on July 14, 2005. Such prior License record also reflects that there is one open complaint against License
No. 209458 and that two complaints resulted in discipline against License No. 209458.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.
2. 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 undisputed evidence established that Main abandoned the new home construction contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
ORDER
IT IS ORDERED that on the effective date of the final Order in this matter,
Main Construction and Landscape, LLC’s License No. 209358 is revoked.
IT IS FURTHER ORDERED that on the effective date of the final Order in this matter, Main Construction and Landscape, LLC’s License No. 215939 is revoked.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings. 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, May 25, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors