ALJDEC decisions subject to certification as final

2021A-01517-CHC-ROC · Registrar of Contractors · 2021-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lorena Guerrero ,

COMPLAINANT

Novelda Investments LLC

License No. ROC 329667,

RESPONDENT.

No. 2021A-01517-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2021

APPEARANCES: Complainant Lorena Guerrero appeared on behalf of herself. Richard Worcester appeared on behalf of Respondent Novelda Investments, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

Respondent Novelda Investments, LLC (Novelda or Respondent) holds

License No. 329667 issued by the Arizona Registrar of Contractors (Registrar).

2. Richard Worcester is Respondent’s qualifying party.

3. On or about December 10, 2020, Complainant Lorena Guerrero and

Respondent entered into a residential repair contract for the amount of $80,881.91.

4. On or about December 14, 2020, Respondent began work under the contract.

5. On or about April 7, 2021, Respondent stopped work.

6. Ms. Guerrero paid Respondent $61,287 pursuant to the contract.

7. On or about April 7, 2021, the Registrar received a complaint from Ms. Guerrero alleging poor work on the part of Respondent.

8. On or about May 6, 2021, Registrar Investigator Steve Hammons conducted a job-site inspection.

9. On May 11, 2021, Investigator Hammons issued a Directive against Respondent’s license. The May 11, 2021 Directive provided, in relevant part, as follows:

Dear Respondent:

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 June 1, 2021.

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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 reasons, 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 4: “Addition building was made smaller without contacting us about it”

Investigator’s Observation: Verified. The complainant pointed out to me and showed me the addition that was built.

The contract states this addition will be 24’ x 20’, the approved construction plans called for a 23’2” x 20’ addition to be built. The concrete slab was built to 24’ x 20’, however the structure was built to 23’4” x 20’. Thus the addition was not built to contract nor approved plans.

Governing Rule: A.R.S. § 32-1154 (A) 2: Departure from or disregard of: (a) Plans or specifications...

Complaint Item 6: “Has stopped working claiming we will not meet his demands when we have paid over 80%”

Investigator’s Observation: Verified. Respondent has stated in multiple emails that he will not complete work as contracted, Respondent during Job Site Inspection stated again he will not complete work per contract.

10. Respondent did not correct the items listed in the Directive by June 1, 2021.

11. On June 8, 2021, the Registrar issued a Citation that contained allegations that Respondent may have violated A.A.C. Rule 4-9-108(a) and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(1). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

12. Respondent filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

14. At hearing, Investigator Hammons testified regarding this investigation of the complaint and the issuance of the Directive.

15. Ms. Guerrero testified on behalf of herself. Ms. Guerrero explained that

Respondent performed poor work and abandoned the job. Ms. Guerrero explained that Respondent notified her in April of 2021 and that he would perform no additional work until Ms. Guerrero provided additional payment.

16. Mr. Worcester testified on behalf of Respondent. Mr. Worcester did not dispute that Respondent stopped working on Ms. Guerrero’s home in April of 2021.

Mr. Worcester explained that he stopped work on Ms. Guerrero’s home because Ms. Guerrero frequently changed her mind regarding the work that she wanted Respondent to perform on her home. Mr. Worcester stated that he received different instructions from Ms. Guerrero, her children, and her husband. Mr. Worcester also explained that there were rising costs for materials due to the COVID-19 pandemic.

17. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on September 15, 2021. Respondent’s license record shows that its licensed was issued on July 14, 2020 and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that Respondent failed to repair Ms. Guerrero’s home in accordance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(b).

7. The preponderance of the evidence shows that Respondent abandoned the

construction project without legal excuse, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 329667 held by Novelda Investments, LLC, for one day.

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 days from the date of that certification.

Done this day, September 15, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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