ALJDEC decisions subject to certification as final

2020A-02659-CHC-ROC · Registrar of Contractors · 2020-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Joseph Doperak,

COMPLAINANT

Leone Builders LLC,

License No. ROC 304633,

RESPONDENT

No. 2020A-02659-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 26, 2020

APPEARANCES: Complainant David Joseph Doperak appeared on his own behalf. Ehab Leone, Owner, appeared on behalf of Respondent Leone Builders LLC and was represented by James Sparks.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Leone Builders LLC (Respondent) is the holder of License No. 304633 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 11, 2020, David Joseph Doperak (Complainant) signed a contract with Respondent for a remodeling project.

On or about May 31, 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 Steve Klein.

On or about June 25, 2020, Investigator Klein performed a jobsite inspection.

On or about June 26, 2020, Investigator Klein issued a written directive to Respondent that provided 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 July 16, 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 #2 Poor quality of painters taping/cleaning around windows also supported by pictures. Paint left all over the windows, painted over the rubber seal of windows, left over spray on the window coverings, interior door would not latch properly after painting the latch, painted shut a French door in the master that worked fine before that was identified by home inspectors, broke a window...

Inspector’s Observation: Verified overspray on window covering on kitchen door, I’m unable to verify Respondent is responsible for other issues in Complaint #2

• Respondent should correct overspray on door window covering only.

Complaint #3 Failed to complete electrical concerns in the garage as pointed out by the professional home inspectors. "A GFCI outlet does not reset after testing and should be replaced." This was pointed out to Ehab twice.

Inspector’s Observation: Verified garage receptacle has no power.

On or about June 26, 2020, Complainant sold the property and a warranty deed was recorded.

Following the issuance of the written directive, Respondent called and emailed Complainant to arrange to perform the corrective work, but Complainant did not respond. Specifically, on July 15, 2020, Respondent emailed Complainant to request access to the property on July 20, 2020 to address the directive. On August 4, 2020, Respondent forwarded the email to Complainant and again asked for access to the property to complete the work.

After the deadline in the directive expired, Investigator Klein was notified no corrective work had been performed, so no compliance inspection was performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Complainant testified that he did receive the July 15, 2020 email from Respondent. Complainant acknowledged he received the August 4, 2020 email and, at that time, he found the earlier email in his junk mail folder. Complainant stated he moved out of the home in February or March 2020. Complainant testified he signed the warranty deed on June 23, 2020, but it was notarized on June 26, 2020. Complainant admitted he did not notify the new owner of the possibility of Respondent performing the corrective work. Complainant did not provide any indication that he had a way to allow Respondent onto the property to perform the corrective work.

Mr. Leone testified that he would have performed the corrective work identified in the directive if Complainant had responded to his attempts to contact him. Mr. Leone posited it would take him approximately five minutes to fix the issues.

Administrative notice is taken of Respondent’s prior License record on November 16, 2020. Such prior License record reflects that Respondent’s License No. 304633 was first issued on April 19, 2020, and is active. Such prior License record also reflects that there were two open complaints and no 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 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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent attempted to contact Complainant to perform the corrective work, but Complainant did not respond. Further, Complainant no longer owned the property and failed to establish he would be able to grant Respondent access to the property to complete the work. While Respondent failed to take appropriate corrective action following a written directive from the Registrar, Respondent had valid justification for doing so given Complainant’s denial of access. Therefore, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2020-02659 against Respondent’s License No. 304633 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, November 16, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000