ALJDEC decisions subject to certification as final

2021A-00832-CHC-ROC · Registrar of Contractors · 2021-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LuAnn Broadley,

COMPLAINANT

C Palomino Industries LLC

License No. ROC 323663,

RESPONDENT

No. 2021A-00832-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 10, 2021

APPEARANCES: Complainant LuAnn Broadley appeared on her own behalf. Cristian Sandoval, Owner and Qualifying Party, appeared on behalf of Respondent C Palomino Industries LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

C Palomino Industries LLC (Respondent) is the holder of License No. 323663 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 4, 2019, LuAnn Broadley (Complainant) signed a contract with Respondent for the construction of an addition on her home for a total contract price of $148,453.68. The contract indicated an estimated date of completion of February 2, 2020.

On or about February 26, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Dennis Bierma. After a jobsite inspection, Investigator Bierma issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 21, 2021.

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: “Project/job has not been completed.”

Investigator’s Observation: Verified: Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent installed some insulation. After the deadline in the directive expired, Investigator Lisa Melton was notified the corrective work had not been completed.

At the compliance jobsite inspection, Investigator Melton noted that only minimal work had been performed since the issuance of the written directive. At that time, Respondent informed Investigator Melton that it was going to start working on the project and it would take two to three months to complete the project at that point. Investigator Melton notified the parties that the deadline in the written directive could be extended, but Respondent indicated it would rather proceed to hearing.

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); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

Investigator Melton testified as to her observation of the project during the compliance jobsite inspection. Investigator Melton indicated that the alleged violation of A.R.S. § 32-1154(A)(8) was based on Respondent’s failure to complete the project.

Complainant testified that she had paid in excess of $146,000.00 on the project. Complainant also described the damage to her home resulting from Respondent’s failure to properly perform the work on the project and to complete the project in a timely manner. Because Respondent did not properly install the roof, existing parts of Complainant’s home suffered water damage that has yet to be corrected, Complainant’s property inside those areas was destroyed, and the new additions to the property now have water damage. The exterior foam and chicken wire has been installed and exposed on Complainant’s property for months without any stucco installation and Complainant is concerned about the integrity of the materials as a result. Complainant stated that between October 2020 and May 2021, Respondent performed no work on her home. Complainant avowed that the last she had seen of Respondent was at the compliance jobsite inspection.

Mr. Sandoval indicated that he agreed with everything to which Investigator Melton and Complainant had testified. Mr. Sandoval stated that this was the first business he had ever owned and it was never his intention for the project “to go this way.” Mr. Sandoval asserted that he had been trying to get the work done, but was in a poor financial situation.

Administrative notice is taken of Respondent’s prior License record on August 25, 2021. Such prior License record reflects that Respondent’s License No. 323663 was first issued on February 25, 2019, and was active. Such prior License record also reflects that there was one prior resolved/settled complaint 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.

The evidence established that Respondent failed to complete Complainant’s project as set forth in the contract. Therefore, Complainant established that Respondent failed to complete the project for the price stated in the contract in violation of A.R.S. § 32-1154(A)(8).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

Of particular concern to this Administrative Law Judge is Respondent’s failure to perform work on this project for approximately seven months between October 2020 and May 2021, and once a written directive had been issued, performing only the minimal installation of some insulation. Despite Complainant paying almost the full amount of the contract, either to Respondent or for supplies, Complainant’s home is not only not complete, but is seriously damaged as a result of Respondent’s work.

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. 323663.

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)(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 will be 40 days from the date of that certification.

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-137160-45720000Done this day, August 25, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000