ALJDEC decisions subject to certification as final
2021A-02351-CHC-ROC · Registrar of Contractors · 2021-12-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Paul T Anderson,
COMPLAINANT
v.
Modcor LLC
License No. ROC 326568,
RESPONDENT
No. 2021A-02351-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 1, 2021 and December 15, 2021.
APPEARANCES: Complainant Paul T. Anderson appeared via Google Meet. Steven Avila, Registrar of Contractors Investigator, appeared via Google Meet. Tim Hurst was present on behalf of Respondent Modcor LLC on November 1, 2021, but failed to appear on December 15, 2021.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Modcor LLC (Respondent) is the holder of License No. 326568 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 7, 2020, Paul T. Anderson (Complainant) contracted to have Respondent remodel his personal residence located at 9723 E. Becker Ln., Scottsdale, Arizona 85260. The total contract price was $138,000.00, and Complainant had paid a total of $184,519.64.
On or about May 25, 2021, the Registrar received a Complaint containing 19 items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Steven Avila. The jobsite inspection was performed on June 24, 2021. No representative from Respondent was present.
Investigator Avila then issued a written directive on or about June 29, 2021, 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 30, 2021.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - Plumbing hook ups
Investigator’s Observation: At the time of the inspection the plumbing hook-ups remained in an unfinished state throughout the addition interior and exterior. Allegation has been verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - Finish Plumbing (installation of plumbing fixtures)
Investigator’s Observation: At the time of the inspection to plumbing fixtures were installed in the interior or exterior of the residence. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Drywall and framing for Oven installation and the installation.
Investigator’s Observation: At the time of the inspection the oven was no installed and the oven surround was in an unfinished state. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Interior Trim work
Investigator’s Observation: At the time of the inspection finish trim was missing throughout the project. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 6 - Finish Electrical (light fixtures, switches, outlets)
Investigator’s Observation: At the time of the inspection the light fixtures, switches and outlets were incomplete throughout the project. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - Completion of electrical subpanel and connect to main panel.
Investigator’s Observation: At the time of the inspection the sub-panel located in the addition remained in an unfinished state and tie in to main panel was not connected. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Completion of overhang and tie into existing patio cover
Investigator’s Observation: At the time of the inspection the overhang remained in an unfinished state. allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 9 - Rebuild/repair of Shed with new door installation.
Investigator’s Observation: At the time of the inspection there was no repairs performed on the shed and old door remained. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 10 - Complete Roof
Investigator’s Observation: At the time of the inspection the roof on the addition was complete but no work to existing residence had been performed. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 11 - Stucco the entire structure (existing & addition)
Investigator’s Observation: At the time of the inspection no stucco work has been performed on either the existing residence or add-on. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 12 - Exterior paint of entire structure (existing and
addition)
Investigator’s Observation: At the time of the inspection no paint work had been performed on the existing residence or add-on. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 13 - Concrete path and garbage storage pad
Investigator’s Observation: At the time of the inspection none of the concrete path or garbage pad had been completed. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 14 - HVAC split unit purchase and installation (Clear Choice Mechanical is sub)
Investigator’s Observation: At the time of the inspection no HVAC system had been installed in the add-on. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 15 - Clean up and restoration of yard/Landscaping
Investigator’s Observation: At the time of the inspection clean up and restoration of landscaping had not been completed. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 19 - Complete cabinet and hardware installation.
Investigator’s Observation: At the time of the inspection the kitchen cabinets remained in an unfinished state. Allegation is verified. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
(All errors contained in the original)
On August 23, 2021, Investigator Avila conducted a compliance jobsite inspection. In his notes regarding the same, he stated:
Compliance Findings:
Compliance item #6 - At the time of inspection, the complainant stated that the only work that was completed was some rough electrical. At the time of the inspection some outlets were placed beneath kitchen cabinetry. No outlets or switches were installed throughout the rest of the project. Exposed wires throughout.
In regards to all other items on the directive no work was performed by the respondent. All line items remain in the same unfinished state.
On August 25, 2021, 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).
On or about September 7, 2021, Tim Hurst e-mailed an Answer to the Registrar on behalf of Respondent, stating that that he believed that Respondent never agreed to a contract with Complainant.
On or about September 22, 2021, a Notice of Hearing was issued setting a hearing on November 1, 2021 at the Office of Administrative Hearings, an independent state agency.
At the hearing on November 1, 2021, all parties were present and Respondent requested a continuance due to late disclosure of exhibits by Complainant. At that hearing, Tim Hurst provided his e-mail address so Complainant could provide the exhibits. It was further discussed as to when to re-schedule the hearing, and all parties agreed to December 15, 2021. An Order was issued later that day affirming the hearing date and time and e-mailed to all parties.
On December 15, 2021, the start of the hearing was delayed 15 minutes as Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.
Investigator Avila testified as to the Registrar’s involvement and the above timeline.
Investigator Avila testified that Respondent failed to appear at the Jobsite Inspection and the Compliance Jobsite Inspection. Mr. Avila testified that he believed that the directive provided enough time to at least make significant progress on the complaint items.
In addition, Investigator Avila testified that while he noticed some work on complaint item 6 at the compliance inspection, it was not fully completed, and no other items had been attempted to be remedied.
Finally, Investigator Avila testified that he believed that there was a valid contract between Complainant and Respondent. He testified that since this was a construction loan, Complainant’s bank would not have proceeded if Respondent’s involvement had not been verified.
Complainant testified on his own behalf and offered the testimony of Bill Csencsits as a witness. Complainant also offered 29 exhibits into evidence.
Complainant testified that in February 2020, he and Mike Lafata on behalf of Respondent, entered into the contract. Complainant testified that his bank vetted Respondent to set up the construction draws. In April 2021, Complainant was informed by Chris Losada, Respondent’s Qualifying Party, that Mr. Lafata had quit as the project manager and he would take over.
Complainant next testified that towards the last week of July 2021, Mr. Losada started sending workers to get items fixed. Unfortunately, Mr. Losada passed away and all of the workers walked off the project.
Complainant testified further it was at that point that Mr. Hurst took over and alleged that Complainant and Mr. Lafata were in “cahoots”.
In addition, Complainant presented three checks sent from his bank to Respondent, all of which appeared to be endorsed by Respondent’s owner. Complainant also testified that on or about August 24, 2020, Respondent sent a refund check in the amount of $17,000.00 to Complainant as a refund for some items that Complainant handled himself.
Finally, Complainant testified that at all times he believed he had a contract with Respondent, and Mr. Lafata was acting on behalf of Respondent.
Bill Csencsits testified that he too contracted with Mike Lafata with the understanding that he worked for Respondent. Mr. Csencsits contacted Mr. Losada to verify this, and Mr. Losada responded in the affirmative.
Administrative notice is taken of Respondent’s prior License record on December 22, 2021. Such prior License record reflects that Respondent’s License No. 326568 was first issued on October 18, 2019, and reflects that there was two open complaints, including the present complaint. Further, the license has been suspended for non-renewal.
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 Vazzano 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.” Avila K. Udall, Arizona Law of Evidence § 5 (1960).
At the outset, the Tribunal finds that Complainant had a valid contract with Respondent. The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The plumbing was incomplete, the drywall and framing for the oven was unfinished, the interior trim work was missing, the electrical work (including fixtures, outlets, switches, and sub-panel) was incomplete, the overhang was unfinished, the rebuild/repair of the shed was incomplete, the roof was incomplete, no stucco work had been performed, nor any exterior paint, the concrete path and garbage storage pad was incomplete, the HVAC had not been installed, the yard landscaping and clean-up had not been completed, and the cabinets were in an unfinished state. 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 Respondent failed to complete the corrective work following the Directive being issued. While it was unfortunate that Mr. Losada passed away, other representatives from Respondent should have taken the project over. 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. 326568 for a period of ten 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)(7), 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 30 days from the date of that certification.
-54864001
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-137160-45720000Done this day, December 22, 2021.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors-54864001
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-137160-45720000