ALJDEC decisions subject to certification as final

2021A-02813-CHC-ROC · Registrar of Contractors · 2022-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Geninatti,

COMPLAINANT,

v.

John Watt

DBA: JCM Construction Queen Creek,

License No. ROC 300404,

RESPONDENT.

No. 2021A-02813-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 24, 2022

APPEARANCES: Complainant Thomas Geninatti appeared on behalf of himself. Respondent John Watt appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On November 16, 2019, an invoice was issued to Paradise Community in the amount of $16,000 for the remodeling of a manufactured home located at 2481

W. Broadway Ave #132, Apache Junction, AZ 85120 (the home). According to the invoice, Respondent John Watt DBA: JCM Construction Queen Creek (Mr. Watt) would remodel the home.

2. A check in the amount of $16,000 was issued to Mr. Watt on October 22, 2020 for the remodeling project. The check posted on October 26, 2020.

3. On October 30, 2021, Mr. Watt started work.

4. On March 29, 2021, Mr. Watt stopped work.

5. In or around June 2021, Complaint Thomas Geninatti filed a complaint with the Arizona Registrar of Contractors (ROC) alleging abandonment on the part of John Watt.

6. Mr. Geniatti is the owner of the home.

7. On July 18, 2021, Mr. Watt sent an e-mail to ROC Investigator Beau Cruz admitting that he accepted $16,000 from Paradise Community and agreed to remodel the manufactured home. The July 18, 2021 e-mail provided, in relevant part, as follows:

Mr. Cruz, I have written a response to the complaint that was filed. I am no longer located in AZ and will not be able to be onsite. I will reach out to you by phone tomorrow. John Watt” – pg. 28-30 – in his statement he writes: Received a check on the 10.26.2020 in the amount of $16,000 that was paid from an invoice that did not originate from a JCM invoice. This invoice was completed by Tishawna Newman from Valley Vistas MGMT. At this time, I told her that I did not want to do the job and tried to return the check to her. And she insisted that she needed me to do the job. I told her that it was not my practice to get the total payment for the job only a deposit. She informed me that it was to difficult to get another check, because the accountant had moved to Texas and was responsible to issue the checks. So we agreed to do the job.

8. On July 21, 2021, ROC Investigator Beau Cruz conducted a job-site inspection. Investigator Cruz learned that the home had not been lived in by the owner and that the home was intended for rent or sale. Investigator Cruz found that

Mr. Watt abandoned the project and substantiated complaint items 1 through 13.

9. Investigator Cruz did not issue a directive to Mr. Watt.

10. On July 12, 2021, Investigator Cruz recommended that the legal department issue a Citation against Mr. Watt for abandonment.

11. On July 27, 2021, the ROC issued a Citation against Mr. Watt’s license alleging that Mr. Watt violated Arizona Revised Statutes 32-1154(A)(1).

12. Mr. Watt filed a timely answer to the Citation.

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

14. On July 27, 2021, the ROC issued a Notice of Hearing setting the matter for hearing on September 23, 2021.

15. On September 22, 2021, Investigator Cruz conducted a pre-hearing inspection and concluded that Mr. Watt had not completed the project.

16. The hearing that was set for September 23, 2021 was continued.

17. A Notice of a continued hearing was issued on October 18, 2021 setting the matter for hearing on January 24, 2022.

18. On January 21, 2022, ROC Investigator Randy Cason conducted a pre-hearing inspection and discovered that Mr. Watt had not completed the project.

19. A hearing was held on January 24, 2022.

20. Mr. Geninatti testified on behalf of himself. Investigator Randy Cason testified regarding Investigator Cruz’s investigation of the complaint. Investigator Cason also testified regarding his pre-hearing inspection. Mr. Watt testified on behalf of himself.

21. Mr. Geniatti explained that Mr. Watt failed to remodel the manufactured home.

22. Mr. Watt asserted that he did not agree to remodel the home for $16,000. Mr. Watt also stated he did not create the invoice. Mr. Watt stated that Ms. Newman, a representative from Paradise Community, created the invoice. Mr. Watt did not deny that he accepted the $16,000 that was issued to him. Mr. Watt stated that it would cost $30,000 to remodel the home. Mr. Watt stated that he tried to return the check but Paradise Community would not accept it. Mr. Watt stated that he performed other work for Ms. Newman, the representative from Paradise Community, that was not listed on the invoice. Mr. Watt presented no evidence of a new invoice or contract.

23. Administrative notice is taken of Respondent’s prior License record on February 14, 2022. Such prior License record reflects that Respondent’s License No. 300404 was first issued on July 22, 2015, and was voluntarily cancelled on April 5, 2021. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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 section 5 (1960).

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

4. Upon consideration of all of the evidence presented at hearing, the Administrative Law Judge concludes that Mr. Watt received a $16,000 payment pursuant to the November 16, 2019 invoice to remodel the home. The Administrative Law Judge further concludes that Mr. Watt began work but abandoned the home remodeling contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

ORDER

IT IS ORDERED that on the effective date of the final Order in this matter,

License No. ROC 300404 held by John Watt DBA: JCM Construction Queen Creek, is suspended for three days.

In the event of certification of the Administrative Law Judge Decision by the Director of 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 40 days from the date of that certification. Done this day, February 14, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors