ALJDEC decisions subject to certification as final

2021A-03592-CHC-ROC · Registrar of Contractors · 2021-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth Young,

COMPLAINANT,

v.

Shorbe Construction and Consulting LLC

License No. ROC 263126,

RESPONDENT.

No. 2021A-03592-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 29, 2021

APPEARANCES: Complainant Elizabeth Young appeared on behalf of herself. John Shorbe, Sr. appeared on behalf of Respondent Shorbe Construction and Consulting, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

1. John Shorbe, Sr. (Mr. Shorbe) is the qualifying party for Respondent Shorbe Construction and Consulting, LLC (SCC or Respondent).

2. On March 18, 2021, Complainant Elizabeth Young entered into a contract with SCC wherein SCC agreed to demolish and remodel Ms. Young’s kitchen for the amount of $111,415.

3. SCC did not provide Ms. Young with a contract that included the estimated date of completion, information regarding her right to file a complaint with the Arizona Registrar of Contractors (the ROC or the Registrar of Contractors), nor contact information for the ROC.

4. SCC’s invoices regarding the project did not include SCC’s ROC license number.

5. On or about May 13, 2021, SCC started work.

6. On or about June 15, 2021, SCC stopped work.

7. Ms. Young paid $47,160 to SCC for the project.

8. On or about July 29, 2021, Ms. Young filed a complaint with the ROC alleging abandonment on the part of SCC.

9. On August 20, 2021, Investigator Vildusea conducted a job-site inspection. Mr. Shorbe was present. Mr. Shorbe admitted that SCC abandoned the project. Mr. Shorbe informed Investigator Viladusea that he would not be able to complete the project due to his own health. However, Mr. Shorbe stated that he would arrange for another contractor to complete the work.

10. At the job-site inspection, Investigator Vildusea observed that the kitchen was demolished and 22 sheets of roof sheathing had been replaced. However, permits had not been obtained for the project. Investigator Vildusea observed that the electrical and paint work had not been completed. See Investigator Vildusea’s testimony on the hearing record at 12:00 to 15:05 minutes. The windows, air conditioning unit, furnace, and water heater had not been installed. There were no door or walls built. See id.

11. Ms. Young did not allow another contractor to complete the project.

12. Investigator Vildusea did not issue a Directive to SCC because

Mr. Shorbe indicated that SCC was unable to complete the project.

13. On August 31, 2021, Investigator Vildusea recommended that the ROC’s legal department issue a Citation against SCC’s license.

14. On September 29, 2021, the ROC issued a Notice of Hearing setting the above-captioned matter for hearing on October 29, 2021, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

15. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the ROC alleges that SCC may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, Ariz. Admin. Code § R4-9-108(a) and (b); A.R.S. § 32-1154(A)(1),(2)(b),(12); A.R.S. § 32-1124(B); A.R.S. § 32-1158.

16. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the ROC may suspend or revoke the license of SCC.

17. A hearing was held on October 29, 2021.

18. At hearing, Ms. Young testified on behalf of herself. Mr. Shorbe testified on behalf of SCC. Investigator Vildusea testified regarding his investigation of the complaint.

19. Mr. Shorbe explained that SCC abandoned the project because

Mr. Shorbe suffered a heart attack and underwent an open heart surgery. A bankruptcy petition was filed on behalf of SCC. Mr. Shorbe explained that he could no longer sustain the business. Mr. Shorbe stated that Ms. Young has paid for what she has received.

20. Ms. Young explained that SCC abandoned the project. Ms. Young alleged that SCC committed fraud and stole her money. Ms. Young contended that SCC’s license should be revoked. Ms. Young disagreed that she has paid for what she has received.

21. Administrative notice is taken of Respondent’s prior License record on October 29, 2021. Such prior License record reflects that Respondent’s License

No. 263126 was first issued on February 21, 2010, and is active. Such prior License record also reflects that there were no other open or prior complaints 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 ROC’s jurisdiction. See A.R.S. § s 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation 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 Administrative Law Judge may consider ROC’s administrative

record. See Ariz. Admin. Code § R4-9-118.

4. The undisputed evidence shows that Respondent abandoned the kitchen remodeling project, which is a violation of A.R.S. § 32-1154(A)(1).

5. The preponderance of the evidence shows that Respondent did not

obtain permits for the kitchen remodeling project, which is a violation of A.R.S. § 32-1154(A)(2)(b).

6. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a) and thereby of A.R.S. § 32-1154(A)(3).

7. The preponderance of the evidence shows that Respondent did not perform work in accordance with applicable building codes and professional industry standards, which is a violation of A.A.C. R4-9-108(b) and thereby of A.R.S. § 32-1154(A)(3).

8. The undisputed evidence established that SCC’s invoices regarding the project did not include SCC’s ROC license number, which is a violation of A.R.S. § 32-A.R.S. § 32-1124(B) and thereby A.R.S. § 32-1154(A)(12).

9. The undisputed evidence established that SCC’s contract did not include the estimated date of completion, information regarding Ms. Young’s right to file a complaint with the ROC, nor contact information for the ROC, which is a violation of A.R.S. § 32-1158 and thereby A.R.S. § 32-1154(A)(12).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar of Contractors shall suspend License No. ROC 263126 issued to Shorbe Construction and Consulting, LLC, for three days.

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 is forty days after the date of that certification.

Done this day, October 29, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

ROC of Contractors