ALJDEC decisions subject to certification as final

2021A-02291-CHC-ROC · Registrar of Contractors · 2021-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Lombardo,

COMPLAINANT

Fripps Mohave Construction LLC

License No. ROC 263905,

RESPONDENT

No. 2021A-02291-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 29, 2021, with the record held open to receive the case file from the Arizona Registrar of Contractors.

APPEARANCES: Complainant Michael Lombardo appeared on his own behalf. Respondent Fripps Mohave Construction LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Fripps Mohave Construction LLC (Respondent) is the holder of License No. 263905 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 4, 2018, Michael Lombardo (Complainant) entered into a contract for the purchase of a new home built by Respondent. On or about May 24, 2019, escrow on the house closed and Complainant moved into the home.

On or about May 14, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the construction.

The Registrar assigned the complaint to Investigator Robert Mcquien. After a jobsite inspection on June 17, 2021, Investigator Mcquien 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 July 22, 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 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:

Compliance Item: 1 - Master Bedroom window, the window in the Master Bedroom needs to be fixed, it leaks and cracks in stucco fixed on the outside of same window.

Investigator’s Observation: Respondent advised subcontractor will repair leaking window, Cracks observed do not presently require repair, may after window repair. Contractor take corrective action.

. . . .

Compliance Item: 2 - Carpet in one of bedrooms is too short and needs to be

fixed.

Investigator’s Observation: Carpet has retracted from edge of wall. Contractor take corrective action.

. . . .

Compliance Item: 3 - Carpet in Master bedroom has something underneath

it and needs to be fixed.

Investigator’s Observation: Spot on carpet feels like a nail under carpet. Contractor take corrective action.

. . . .

Compliance Item: 4 - Poor Patch job on side of house stucco around a vent

needs to be fixed.

Investigator’s Observation: Stucco patch job around exhaust vent looks like a patch job. Contractor take corrective action.

. . . .

Compliance Item: 7 - Kitchen cabinet door hinge.

Investigator’s Observation: Upper hinge on Kitchen Cabinet needs adjustment. Contractor take corrective action.

. . . .

Following the issuance of the written directive, Respondent addressed some of the issues identified in the directive. After the deadline in the directive expired, Investigator Mcquien was notified not all of the corrective work had been performed.

On or about August 10, 2021, Investigator Mcquien conducted a compliance jobsite inspection. At that time, Investigator Mcquien noted that items 2, 3, and 7 from the written directive had been corrected, but items 1 and 4 had not been corrected.

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).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 29, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

A September 27, 2021 order from the Office of Administrative Hearings informed the parties that the hearing would be conducted via Google Meet and provided the information necessary to connect.

A hearing was held on October 29, 2021. Complainant testified on his own behalf. Respondent did not appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Mcquien testified as to his observations of the home during the jobsite and compliance jobsite inspections. Investigator Mcquien stated that he was told that a subcontractor was trying to get the windows replaced.

Complainant testified that he had tried to have Respondent correct the issues on several occasions prior filing the complaint. Complainant stated that some of the items had been corrected, but Respondent kept telling him that it could not find the stucco.

Administrative notice is taken of Respondent’s prior License record on December 10, 2021. Such prior License record reflects that Respondent’s License No. 263905 was first issued on April 26, 2010, and is active. Such prior License record also reflects that there were two open complaints and four resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 did not 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 263905 for a period of five days.

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, December 10, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000