ALJDEC - Licensing
2021A-01290-CHC-ROC · Registrar of Contractors · 2023-04-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bryan Willis
COMPLAINANT,
v.
Greg Natale De Thomas
DBA: American Builders
License No. ROC 301803,
RESPONDENT.
No. 2021A-01290-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 16, 2022 and March 23, 2023
APPEARANCES: Complainant Bryan Willis appeared behalf of himself. Respondent Greg Natale De Thomas appeared on behalf of himself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
1. On May 31, 2022, the Arizona Registrar of Contractors (Registrar) issued a Notice of Hearing On Contested Case (Notice), setting the above-entitled matter for hearing on July 6, 2022 at 1:30 p.m.
2. The issue set for determination was whether Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
3. Due to the unavailability of Registrar Investigator Clifford Corlett, the hearing date was continued to August 16, 2022 at 1:00 p.m.
4. A hearing convened on August 16, 2022 at approximately 1:00 p.m.
During the August 16, 2022 hearing, the parties requested additional time to resolve the matter. Accordingly the matter was set for several status updates.
5. On January 6, 2023, Complainant requested that the matter be reset for hearing.
6. The matter was reset for hearing on March 23, 2023.
7. A hearing was held on March 23, 2023.
8. At the hearings held on August 16, 2022 and March 23, 2023, Complainant and Respondent testified on behalf of themselves, respectively. Investigator Corlett testified regarding his investigation of the complaint.
9. On or about May 27, 2019, Respondent Greg Natale De Thomas DBA: American Builders agreed to build a new home for Complainant Bryan Willis, for the amount of $516,997.59.
10. On May 27, 2019, Respondent started work.
11. On January 27, 2021, Respondent completed construction.
12. On or about March 25, 2021, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.
13. Investigator Cliff Corlett conducted a job-site inspection.
14. On June 18, 2021, the Registrar closed the complaint.
15. On or about October 18, 2021, Complainant requested that the Registrar reopen the complaint. Complainant added additional items of poor work to the complaint.
16. On November 15, 2021, Investigator Corlett conducted a second job-site inspection.
17. Complainant added more items to the complaint.
18. On January 4, 2022, Investigator Corlett conducted a third job-site inspection.
19. On January 28, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct 32 complaint items, by appropriate means, no later than March 4, 2022. See the Registrar’s administrative record (AR), pgs. 49-71.
20. On or about March 23, 2022, Investigator Corlett received an e-mail from Complainant alleging that Respondent had not corrected the Directive items.
21. On or about April 8, 2022, the Registrar conducted a compliance job-site inspection.
22. At the April 8, 2022 compliance job-site inspection, Investigator Corlett found that Respondent had failed to appropriately correct 14 complaint items. See AR, pgs. 88-101. However, Investigator Corlett concluded that Respondent corrected Complaint Item 8 within industry standards. See id at pg. 100.
23. Investigator Corlett recommended that the case be sent to the Registrar’s legal department for the issuance of a Citation.
24. On April 28, 2022, the Registrar issued a Citation to Respondent. Through the Citation, the Registrar alleged that Respondent violated A.R.S. § 32-1154(A) (3) and (22); A.A.C. R4-9-108(A).
25. Respondent filed an answer to the Citation.
26. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
27. Investigator Corlett did not conduct a pre-hearing inspection before the August 16, 2022 hearing, because Complainant informed him that no work had been performed.
28. After the parties agreed at the August 16, 2022 hearing to set the matter for a status update, Respondent made several repairs to the Directive items.
29. On the Tuesday preceding the March 23, 2023 hearing date, Investigator Corlett conducted a pre-hearing inspection.
30. At the pre-hearing inspection, Complainant informed Investigator Corlett that nine items needed to be repaired: Complaint Items, 8, 13, 22, 29, 30, 32, 38, 59, and the garage door (which was not included in the Directive).
31. Investigator Corlett found that Complainant items 13, 19, and 22, and were appropriately repaired. Regarding Complaint Item 13, (the sliding glass door), Complainant complained that the door had a scratch. However, there were no prior complaints about scratched glass. Regarding Complaint Item 19, (pool details), Investigator Corlett found that Respondent repaired the broken stones appropriately.
Regarding Complaint Item 22, Investigator Corlett operated the front guest bedroom window and it operated normally.
32. Investigator Corlett found that the following items needed to be repaired:
Complaint Item 8 – Stucco Repair: Investigator Corlett concurred with Complainant that the repairs around window corners appeared to be failing.
Complaint Item 30 – Stucco Repair to the rear wall: Investigator Corlett explained that several holes were blocked.
Complaint Item 32 - concrete flat work behind house: Investigator Corlett explained that there is no designated flow to drain the yard. Instead the water flows into a plantern area that will be a part of a dog run.
Complaint Item 38 – damage to underside of kitchen counter caused by handyman. Complainant explained that the countertop is marble with lighting underneath. Respondent replaced the countertop with new paneling, but it has several ripples and waves. The stone is onyx and not granite. Investigator Corlett agreed with Respondent’s representative that the ripples and waves cannot be seen unless one looks under the countertop. Investigator Corlett also testified that a corner broke off one of the panels and it could use a few more screws. The paneling could have been better.
Complaint Item 59 – concrete surface deteriorating: Investigator Corlett opined that concrete should not deteriorate. Investigator Corlett explained that Complainant pointed out several areas in the back and front of the home where concrete was replaced. Investigator Corlett observed minor deterioration.
34. Complainant alleged during the pre-hearing inspection that the garage door
was hung out of level and needed adjustment. However, Investigator Corlett
clarified that the garage door was not included in the Directive. In addition, Investigator Corlett testified to the effect that homeowners are required to perform one year of maintenance of doors.
32. At hearing, Mr. De Thomas alleged that the the stucco was not an issue
until the concrete was removed. Mr. De Thomas argued that a deteriorating concrete surface is very common in the town where the home was built. Mr. De Thomas contended that deterioration can be minimized by keeping the concrete clean.
33. Mr. De Thomas contended that it is not his responsibility to perform maintenance and standard cleaning.
34. Based on the evidence presented at hearing, the Administrative Law Judge finds that Respondent’s repair of Complaint items 30, 32, 38, and 59 failed to meet minimum workmanship standards. Although Investigator Corlett stated at the March 23, 2023 hearing that Complaint Item 8 needed to be repaired, Investigator Corlett previously determined that Respondent that Complaint Item 8 was within industry standards. There was insufficient evidence provided to show that Respondent caused additional damage to the stucco after the April 8, 2022 compliance inspection.
35. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on April 12, 2023. Such prior License record reflects that Respondent’s License No. ROC 301803 was issued on November 23, 2015. Such prior License record shows Respondent’s License was voluntarily cancelled on September 13, 2021. Such prior License record shows that the Registrar has not disciplined Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction. See A.R.S. section 32-1101 et seq.
This matter lies within the Registrar’s jurisdiction.
The voluntary cancellation of Respondent’s license does not deprive
Complainant of the right to prosecute the complaint against Respondent’s contractor’s license or prevent the Registrar from adjudicating Complainant’s complaint.
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
6. The Administrative Law Judge may consider the Registrar’s administrative record. See A.A.C. R4-9-118.
7. The preponderance of the evidence shows that Respondent did not perform the work described in Complaint Items 30, 32, 38, and 59 in a professional and workmanlike manner, which is a violation of A.R.S.§ 32-1154(A)(3), namely A.A.C. R4-9-108(A).
8. The preponderance of the evidence shows that Respondent failed to comply with the Directive, which is a violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is ordered that, on the effective date of the final order in this matter, License No. ROC 301803 of Respondent Greg Natale De Thomas
DBA: American Builders shall be suspended for three (3) days.
It is further ordered that the Respondent shall pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
If Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, the Registrar shall 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.
Done this day, April 12, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, April 12, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Bryan Willis
[email redacted]
Greg Natale De Thomas
[email redacted]
Martín Quezada
Cliff Corlett
[email redacted]
By: OAH Staff