ALJDEC decisions subject to certification as final

2021A-02446-CHC-ROC · Registrar of Contractors · 2021-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Rafi,

COMPLAINANT,

v.

Retro Structure LLC

License No. ROC 329685,

RESPONDENT.

No. 2021A-02446-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 2, 2021

APPEARANCES: Complainant Michael Rafi appeared on behalf of himself. Francisco R. Ruiz Fuentes appeared on behalf of Respondent Retro Structure, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Retro Structure, LLC (Retro) holds KB-2 Dual Residential and

Small Commercial License No. 329685 issued by the Arizona Registrar of Contractors (ROC).

2. Retro’s license is currently suspended. The ROC suspended Retro’s license effective January 19, 2021.

3. Francisco R. Ruiz Fuentes is the Manager of Retro.

4. On or about March 8, 2021, Retro agreed to remodel the home of Complainant Michael Rafi and demolish the inner walls for $100,000. The contract included the following work: new concrete formation, framing, plumbing, electrical, drywall, stucco, roofing, landscaping, tile work, demolition, and the installation of an air conditioning system.

5. Rafi paid Retro $20,000 pursuant to the contract.

6. On or about March 8, 2021, Retro began work.

7. On or about March 9, 2021, Retro stopped work.

8. Retro did not complete the home remodeling project.

9. On or about April 16, 2021, the ROC received a complaint from

Mr. Rafi alleging poor work on the part of Retro.

9. On or about June 30, 2021, Registrar Investigator Barry Maerker conducted a job-site inspection.

10. On August 9, 2021 Investigator Maerker issued a Directive against Respondent’s license. Through the Directive, Investigator Maerker directed Retro to complete the contract by August 27, 2021.

11. Retro failed to comply with the Directive.

12. On September 3, 2021, the Registrar issued a Citation that contained allegations that Respondent may have violated A.A.C. Rule 4-9-108(a) and Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3); A.R.S. § 32-1154(22). 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.

13. Respondent filed a timely answer to the Citation.

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

evidentiary hearing.

15. A hearing was held on November 2, 2021.

16. At hearing, Mr. Rafi testified on behalf of himself. Mr. Fuentes testified on behalf of Retro. Investigator Maerker testified regarding his investigation of the complaint and the issuance of the Directive.

17. Mr. Rafi explained that Retro performed poor work and did not complete the project. Mr. Rafi explained that Retro left his roof sunk in. Mr. Rafi hired another contractor to repair the sunken roof. However, the contractor informed Mr. Rafi that the home would have to be demolished.

18. Mr. Fuentes did not dispute that he failed to complete the project.

Mr. Fuentes testified to the effect that he had a family emergency in Mexico and that he was in the hospital. Mr. Fuentes testified that he called Mr. Rafi after returning from Mexico, but Mr. Rafi would not return his calls.

19. Mr. Fuentes asserted that Mr. Rafi was aware that Retro was unlicensed. Mr. Fuentes stated that Mr. Rafi orally requested changes to the contract and that

Mr. Rafi agreed to the increased price.

20. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on November 4, 2021. Such prior License record shows that Respondent’s License No. 329685 was first issued on July 15, 2020 and has been suspended since January 19, 2021. Such prior License shows that there is only one open complaint against Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline.

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.

The suspended status of Respondent’s license does not deprive

Complainant of his right to prosecute the Complaint or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

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

5. 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 preponderance of the evidence shows that Respondent failed to perform the work in compliance with professional industry standards, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

7. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a 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 ROC License: No. 329685 held by Retro Structure, LLC for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that 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, March 18, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors