ALJDEC decisions subject to certification as final

2020A-05633-OMC-LS-ROC · Registrar of Contractors · 2020-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Beaumier’s Design & Remodeling, LLC

License No. ROC 312249

RESPONDENT

No. 2020A-05633-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 15, 2020

APPEARANCES: Assistant Attorney General John Tellier represented Complainant Arizona Registrar of Contractors. Chance Peterson, Assistant Chief Counsel for the Arizona Registrar of Contractors was present. Arizona Registrar of Contractors Investigator David Thomas was a witness, as was Shannon Larrios. Respondent Beaumier’s Design & Remodeling, LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

Having considered the evidence in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT

Background and Procedure

On March 23, 2017, the Arizona Registrar of Contractors (“Registrar”) issued License No. 312249, a KB-2 Dual Residential and Small Commercial contracting license to Beaumier’s Design & Remodeling, LLC (“Respondent”).

On December 7, 2020, the Registrar issued an Order of Summary Suspension, Order Consolidating Cases, and Notice of Promptly Instituted Proceeding (“Order”) setting the above-captioned matter for an expedited hearing at 9:00 a.m. on December 15, 2020, at the Office of Administrative Hearings. In the Order, the Registrar presented its determination that the public welfare imperatively required emergency action and summarily suspended Respondent’s license.

On December 11, 2020, the Registrar also issued a Supplemental Notice to clarify and detail the specific charges against Respondent and added a new Complaint to the previously consolidated seven Complaints.

Hearing Evidence

No appearance by or on behalf of Respondent was made. The Registrar called its Investigator, David Thomas, and Shannon Larrios as witnesses and submitted thirty-three exhibits into the record.

Between October 2020 and December 2020, the Registrar received eight complaints against Respondent which were consolidated into this single proceeding.

Complaint No. 2020-04950

On October 19, 2020, the Registrar received a Complaint against Respondent filed by Sherry Cheek. In her complaint Ms. Cheek alleged incomplete and poor work with regard to a remodel project undertaken by Respondent.

On November 16, 2020, Registrar Investigator David Thomas conducted a jobsite inspection. Respondent did not attend the jobsite inspection. Investigator Thomas reviewed the contract executed between the parties and observed that the contract failed to contain the required minimum elements of a contract required by Ariz. Rev. Stat. § 32-1158(A). Specifically lacking were: i) the estimated date of completion; ii) the total dollar amount including all applicable taxes; and iii) the advisement that the property owner has the right to file a written complaint with the Registrar.

Investigator Thomas also inspected the work that had been done on the project and took photographs of the project. Subsequent to the jobsite inspection, Investigator Thomas drafted Jobsite Inspection Notes.

On December 2, 2020, Investigator Thomas issued a WRITTEN Directive from the Registrar to Respondent because he determined that Respondent had performed work on the project that failed to meet minimum Registrar workmanship standards. Specifically, Respondent was ordered to complete Complaint item numbers 3, 5 through 15, 19, and 20 via appropriate means. Respondent was put on notice that it had until December 21, 2020, to notify the Registrar of its compliance with the WRITTEN Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).

On December 2, 2020, Investigator Thomas issued WARNING LETTERS to Respondent for violations of Ariz. Rev. Stat. §§ 32-1154(A)(2); 32-1154(A)(16); and 32-1158(A).

Complaint No. 2020-05322

On November 9, 2020, the Registrar received a Complaint against Respondent filed by Toni Zeller Kohlbeck. In her Complaint Ms. Kohlbeck alleged that Respondent had poorly performed work on her kitchen remodel and the skirting around the residence, as well as “long periods of no work.”

On November 23, 2020, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a jobsite inspection would be conducted by a Registrar investigator on December 8, 2020. On December 8, 2020, Investigator Thomas conducted an inspection of the project site. Respondent was not present. Investigator Thomas took photographs of the project site. Investigator Thomas testified that he verified most items contained in the filed Complaint, and that Respondent’s work was not performed according to contract.

Complaint No. 2020-05577

On November 27, 2020, the Registrar received a Complaint against Respondent filed by Cecil Ronald Burden. In his Complaint, Mr. Burden alleged that Respondent had abandoned the parties’ contract for a master and guest bathroom remodel.

On December 3, 2020, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a rescheduled jobsite inspection would be conducted on December 8, 2020.

On December 8, 2020, Investigator Thomas conducted an inspection of the project site. Respondent was not present. Investigator Thomas testified that he verified Mr. Burden’s items of Complaint, in that work was poorly performed and not completed.

Complaint No. 2020-05607

On December 1, 2020, the Registrar received a Complaint against Respondent filed by Kathi Raley. In the Complaint, Ms. Raley alleged that Respondent had performed poor work, abandoned the parties’ contract, falsified pay applications, and absconded with payments. Included with the Complaint was documentation including the parties’ contract, and proof of payments.

On December 3, 2020, the Registrar issued a Jobsite Inspection Notice to the parties, advising that a jobsite inspection would be conducted by a Registrar investigator on December 8, 2020.

On December 8, 2020, Investigator Thomas conducted an inspection of the project site. Respondent was not present. Investigator Thomas testified that he confirmed the items delineated in Ms. Raley’s Complaint. Investigator Thomas testified that Respondent abandoned the contract, and further that the framing of the house was not “normal.” Investigator Thomas testified that this was the “first time he had seen framing like this.”

Complaint No. 2020-05636

On December 2, 2020, the Registrar received a Complaint filed by Banker Insulation of Northern Arizona (“Banker”) against Respondent. In the Complaint, Banker alleged non-payment by Respondent in the amount of $6,306.00 for insulation materials and work related to Respondent’s operations as a contractor. The supporting documentation submitted by Banker indicates that the amount due for completed work, is $5,990.70.

Complaint No. 2020-00879

On December 1, 2020, the Registrar received an amended Complaint from Builder Services Group, Inc., doing business as Gale Contractors Services’ (“Gale”) against Respondent alleging non-payment by Respondent in the remaining amount of $2,398.68 for insulation work.

Shannon Larrios, Gale’s regional credit manager, testified consistently with the information contained in the Complaint.

Complaint No. 2020-05641

On December 3, 2020, the Registrar received a Complaint from Valley Fabrication, Inc. against Respondent alleging non-payment by Respondent in the amount of $2,762.50 for materials and services for the construction of a staircase related to Respondent’s operations as a contractor.

Complaint No. 2020-05679

This Complaint alleges abandonment, however, no evidence was presented at hearing regarding the specifics of the Complaint.

Administrative Notice is taken of Respondent’s prior License record, for License No. 312249, as reflected on the Registrar’s public website on December 28, 2020. Such prior License record reflects that Respondent’s license is currently suspended. The record also reflects that there are eight open complaints against Respondent’s license, all of which are presumed to be related to this matter. Respondent has an active surety bond that was issued through Merchant’s Bonding Company effective March 2, 2017, of which $14,000.00 remains available.

CONCLUSIONS OF LAW

The Notice of Hearing and Supplemental Notice the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well. Further, on December 8, 2020, the Office of Administrative Hearings issued an Order advising that the hearing would convene via Google Meet. That Order was sent to Respondent’s mailing address and was also sent electronically to Respondent.

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.”

Respondent’s suspended license does not deprive Complainants of their right to prosecute the Complaints or prevent the Registrar from determining the merits of the Complaints.

The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

The standard of proof on all issues in this matter is that of a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Rev. Stat. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” Ariz. Rev. Stat. § 32-1158(A) provides:

Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

Here, the material facts are not in dispute.

It is undisputed that Respondent entered into residential remodeling contracts with Ms. Cheek, Ms. Kohlbeck, Mr. Burden, and Ms. Raley, and that Respondent did not perform its work in a professional and workmanlike manner. Regarding the Cheek project, the record establishes that Respondent abandoned the project, performed work outside the scope of its license, failed to obtain the required permit, failed to comply with a Written Directive, and its contract failed to contain the minimum elements required for contracts. Regarding the Kohlbeck, Burden, and Raley projects, it is further undisputed that Respondent’s workmanship fell below the Registrar’s minimum workmanship standards. Additionally, the record establishes that Respondent did not complete any of these projects.

Regarding the Banker, Gale, and Valley Fabrication, Inc. Complaints, it is undisputed that Respondent failed to pay monies in excess of $750.00 when due for materials or services rendered in connection with its operations as a contractor.

Respondent did not appear for hearing. Consequently, Respondent did not establish any affirmative defenses or provide evidence in mitigation to refute the Registrar’s evidence or justify its inaction in these matters.

Because the Registrar established by a preponderance of the evidence that Respondent violated this State’s contracting laws as set forth above, the Registrar has also established cause for it to take disciplinary action against Respondent’s contractor’s license.

Considering Respondent’s conduct in these matters, the Registrar shall revoke Respondent’s license to ensure the protection of the public’s welfare.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Beaumier’s Design & Remodeling, LLC’s License No. 312249 shall be revoked.

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 forty (40) days from the date of that certification

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-137160-45720000Done this day, December 30, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000