ALJDEC decisions subject to certification as final

2020A-02220-CHC-ROC · Registrar of Contractors · 2020-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darin and Jennifer Barclay

COMPLAINANTS,

v.

Art Effects Cabinet Refacing, LLC

License No. 323226,

RESPONDENT.

No. 2020A-02220-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 2, 2020

APPEARANCES: Complainant Jennifer Barclay appeared on behalf of herself. Yon Yakobian appeared on behalf of Respondent Art Effects Cabinet Refacing, LLC (Art Effects).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDING OF FACT

1. Art Effects holds License No. 323226 issued by the Arizona Registrar of Contractors (Registrar).

2. Yon Yakobian is the qualifying party for Art Effects.

3. On or about January 6, 2020, Complainants Darin and Jennifer Barclay (the Barclays) entered into a home remodeling contract with Art Effects, for $20,464.37.

4. Art Effects did not provide the Barclays with a contract which advised them of their right to file a complaint with the Registrar against Art Effects for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

5. On or about February 12, 2020, Art Effects started work.

6. On or about April 22, 2020, Art Effects stopped work. The Barclays paid Art Effects $20,464.37 for the remodeling project.

7. On or about May 4, 2020, the Registrar received a complaint from the Barclays alleging poor work on the part of Art Effects.

8. On May 27, 2020, Registrar Investigator Arlo Houston conducted a job site inspection.

9. On or about June 24, 2020, the Registrar issued a Directive against Art Effects’s license. Through the Directive, the Registrar directed Art Effects to correct the paintwork on the cabinets and two drawers, the visible miter seams on the cabinet door frames, and the orange peel on a cabinet door, all by appropriate means.

10. Approximately one week before the deadline for compliance under the Directive, Mr. Yakobian notified Investigator Houston that his foreman, Rafael Alvarez, was ill due to Coronavirus (COVID-19). Therefore, Investigator Houston extended the timeline for compliance to July 27, 2020.

11. Art Effects did not correct the items listed in the Directive by July 27, 2020.

12. On September 22, 2020, the Registrar conducted a compliance job site inspection. Investigator Houston concluded that Art Effects had not corrected the items listed in the Directive.

13. On or about September 24, 2020, the Registrar issued a Citation against Art Effects’s license. Through the Citation, the Registrar alleged that Art Effects may have violated Ariz. Rev. Stat. section 32-1154(A)(12); Ariz. Rev. Stat. section 32-1158; Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

14. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Art Effects.

15. Art Effects filed a timely answer to the Citation.

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. On or about November 2, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on December 2, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

18. On November 30, 2020, Investigator Houston conducted a prehearing inspection. Investigator Houston concluded that Art Effects did not correct the items listed in the Directive.

19. A hearing was held on December 2, 2020.

20. At hearing, Ms. Barclay testified on behalf of herself. Investigator Houston testified regarding his investigation of the complaint and the issuance of the Directive. Art Effects presented the testimony of Yon Yakobian and Mr. Alvarez.

21. Ms. Barclay asserted that Art Effects performed poor work when it remodeled her home.

22. Mr. Alvarez explained that he was the foreman for the remodeling project at the home of the Barclays. Mr. Alvarez denied that Art Effects’s work fell below minimum workmanship standards. Mr. Alvarez testified that he performed no work under the Directive because he was sick from COVID-19 for about a month and a half.

23. Mr. Alvarez testified that he attempted to make the corrections in September of 2020. However, Mr. Alvarez explained that the Barclays denied access to the home. Mr. Alvarez asserted that Mr. Alvarez insisted that Art Effects redo the entire kitchen or perform no work at all.

24. Ms. Barclay denied that her husband denied access to her home in September of 2020.

25. Mr. Yakobian testified to the effect that Art Effects failed to timely comply with the Directive because Mr. Alvarez became ill due to COVID-19. Mr. Yakobian also asserted that Art Effects was “on lockdown” for months due to the COVID-19 outbreak. Mr. Yakobian stated that when Art Effects reopened, Mr. Alvarez injured his finger while working on a different project before he returned to the Barclays project in September of 2020.

26. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 22, 2020, Art Effects’s license was first issued on January 11, 2019 and is active. Such prior License record also shows that there is only one open complaint against Art Effects. Art Effects’s license has never been disciplined.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

3. The preponderance of the evidence shows that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

4. The preponderance of the evidence shows that Respondent’s work did not comply with the Registrar’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification. Mr. Yakobian asserted that Respondent failed to comply with the Directive by the extended deadline of July 27, 2020 because Mr. Alvarez was ill. However, Respondent provided no testimony or evidence to establish that he attempted to hire a subcontractor or otherwise resolve the matter with Complainants before the deadline for compliance. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 323226 of Art Effects Cabinet Refacing, LLC shall be suspended for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of 250.00 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 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.

Done this day, December 22, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors