ALJDEC decisions subject to certification as final

2020A-01608-CHC-ROC · Registrar of Contractors · 2020-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ashraf Elgamal,

COMPLAINANT

Sahuaro Valley Construction LLC

License No. 256990,

RESPONDENT

No. 2020A-01608-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 4, 2020 and September 16, 2020

APPEARANCES: Christopher D. Graham, Esq. appeared on behalf of Complainant Ashraf Elgamal. Rita Ellen Roberts, Esq. appeared on behalf of Respondent Sahuaro Valley Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

Respondent Sahuaro Valley Construction, LLC (Sahuaro) holds license number 256990, issued by the Arizona Registrar of Contractors (Registrar).

Gilbert Soto Morales is the qualifying party for Sahuaro.

On or about December 26, 2019, Complainant Ashraf Elgamal and Respondent Sahuaro Valley Construction, LLC (Sahuaro) entered into a commercial construction contract wherein Sahuaro would perform tenant improvement work for

Mr. Elgamal.

4. On or about December 28, 2019, Sahuaro started work.

5. On or about March 19, 2020, Sahuaro stopped work.

6. On or about April 5, 2020, the Registrar received a complaint from

Mr. Elgamal alleging poor work and abandonment on the part of Sahuaro.

7. On or about April 17, 2020, Registrar Investigator Stephen Lawton conducted a job-site inspection.

8. On April 21, 2020, the Registrar issued a Directive to Sahuaro. The April 21, 2020 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 May 22, 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: Contractor abandoned the project.

Investigator’s Observation: Complete project per agreement between both parties per plans and specs and if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to correct by Appropriate Means.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2&3); Namely R4-9-108 (A&B).

Complaint Item 2: Kitchen floor drains installed incorrectly.

Investigator’s Observation: It was determined that the Respondent redid the floor sinks and did not request re-inspection and if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to correct by Appropriate Means.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2&3); Namely R4-9-108 (A&B).

Complaint Item 8: Plumbing installed not matching plans-pipe standard size and not to code.

Investigator’s Observation: Project under construction and has not been finaled by local jurisdiction and if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to correct by Appropriate Means.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2&3); Namely R4-9-108 (A&B)

Complaint Item 9: Restroom plumbing not to code.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2&3); Namely R4-9-108 (A&B)

Complaint Item 10: Kitchen/hand washing sinks plumbing not to code.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (2&3); Namely R4-9-108 (A&B)

9. Sahuaro failed to make the required corrections by May 22, 2020.

10. On June 2, 2020, the Registrar issued a Citation against Sahuaro’s license. Through the Citation, the Registrar alleged that Sahuaro may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(2)(a), 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 Sahuaro’s license.

11. Sahuaro filed a timely appeal to the Citation.

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

evidentiary hearing.

13. On July 17, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on August 18, 2020. The matter was continued and convened on September 4, 2020. Because the matter did not conclude on September 4, 2020, the matter was set for a further hearing on September 16, 2020.

14. At hearing, Mr. Elgamal testified on behalf of himself and presented the testimony of Patrick Davis, Steve Cox and David Hauck. Sahuaro presented the testimony of Mr. Morales and Kenneth Lottes.

15. Mr. Elgamal contended that Sahuaro abandoned the job and performed poor work in its completion of the tenant improvement project.

16. Investigator Lawton testified regarding his investigation of the complaint and issuance of the Directive.

17. Sahuaro’s position was that Mr. Elgamal failed to pay Sahuaro money when due under the contract. However, Sahuaro did not dispute that there were problems with the plumbing.

18. Administrative notice is taken of Respondent’s prior License record on October 6, 2020. Such prior License record reflects that Respondent’s License No. 256990 was first issued on July 8, 2009, and is current. Such prior License record also reflects that there were no other open or 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 violation 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 preponderance of the evidence shows that Respondent did not perform the construction work in accordance with the plans, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2)(a).

Having considered all of the evidence presented in this matter, the Administrative Law Judge concludes that the issues found by Investigator Lawton constituted workmanship issues with the tenant improvement project. Therefore, Complainant established 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.

The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in 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 Sahuaro Valley Construction LLC, License No: 256990

for a day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 licenses, 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)(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 is forty days after the date of that certification.

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-137160-45720000Done this day, October 6, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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