ALJDEC decisions subject to certification as final

2020A-01779-CHC-ROC · Registrar of Contractors · 2020-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amy Vander Linden,

Moment of Truth Physical Therapy LLC,

COMPLAINANT

Mira Bella Builders LLC,

License No. ROC 196548,

RESPONDENT

No. 2020A-01779-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 21, 2020

APPEARANCES: Complainant Amy Vander Linden appeared on her own behalf. Respondent Mira Bella Builders LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Mira Bella Builders LLC (Respondent) is the holder of License No. 196548 issued by the Arizona Registrar of Contractors (Registrar). Respondent was also the holder of License No. 215908, a CR-11 Electrical license, which was revoked as a result of discipline on October 31, 2019.

On or about December 18, 2018, Amy Vander Linden (Complainant) signed a contract with Respondent for shell work and tenant improvements to a commercial location.

On or about April 8, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Daniel Edwards.

On or about April 29, 2020, Investigator Edwards performed a jobsite inspection at which time he reviewed all 14 items listed in the complaint and substantiated 8 of the complaint items. Respondent was not present at the inspection.

Investigator Edwards attempted to contact Respondent regarding the complaint, but the phone number on record with the Registrar was out of service. Investigator Edwards did not receive any communication from Respondent regarding the complaint in this matter.

Upon review, Investigator Edwards noted that Respondent’s license was subject to a disciplinary suspension on October 31, 2019, and an administrative suspension on February 26, 2019.

Because Respondent’s license was disciplinarily suspended, Investigator Edwards did not issue a written directive.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(17).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on July 21, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The Office of Administrative Hearings issued an order indicating the hearing would convene via telephone or videoconference via Google Meet and included the information needed to connect. The order was sent to Respondent at its email address on record.

A hearing was held on July 21, 2020. Complainant testified on her own behalf. Respondent did not appear telephonically or by videoconference and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Edwards testified that, as to the abandonment, Respondent did not complete the shell work and did not provide any evidence it was not required to do so under the contract. As to the workmanship, Respondent collected in excess of $100,000 from Complainant on the project and was expected to perform the shell work successfully. Respondent also collected funds for the HVAC system and did not install it. As to contracting beyond the scope, Respondent performed electrical work including conduits and electrical panels without any evidence that it had subcontracted out the work to a properly licensed contractor. As to contracting while suspended, Investigator Edwards stated that a licensee may perform warranty work or corrective work while subject to a disciplinary suspension, but cannot perform work on an ongoing project and Investigator Edwards understood Respondent was last on the job in February or March 2020, after its license was disciplined in October 2019.

Complainant testified that Respondent had consistently lied to her throughout the project. Complainant stated that she did not know Respondent’s license had been suspended at any point. Complainant indicated she had since had a different contractor complete the work and was scheduled to open her business in 10 days.

Administrative notice is taken of Respondent’s prior License record on August 10, 2020. Such prior License record reflects that Respondent’s License No. 196548 was first issued on May 24, 2004, and has been suspended since October 31, 2019. Such prior License record also reflects that there were two open complaints and two prior complaints resulting in discipline 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).

The evidence established that Respondent failed to complete the work on the project. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent contracted to perform and performed electrical work on the project after its electrical license had been revoked. Accordingly, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

The evidence established that Respondent performed work on the project after its license had been suspended by the Registrar. Accordingly, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(17).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 196548.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(7), 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 will be 40 days from the date of that certification.

-54864001

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

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000