ALJDEC decisions subject to certification as final
2021A-04418-CHC-ROC · Registrar of Contractors · 2022-04-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Emily B. Kile,
COMPLAINANT,
v.
Surface Select Construction, Inc.
License No. ROC 282405,
RESPONDENT.
No. 2021A-04418-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 7, 2022
APPEARANCES: John Ryan, Esq. appeared on behalf of Complainant Emily B. Kile. Patrick Nance appeared on behalf of Respondent Surface Select Construction, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Surface Select Construction holds license number 282405 issued by the Arizona Registrar of Contractors (ROC).
2. Patrick Nance is an officer in Surface Select.
3. Adrian Nevarez Ponce is the husband of Maria Vidal Luna who is severely disabled. Complainant Emily B. Kile is Ms. Luna’s conservator.
4. On or about June 2, 2020, Mr. Ponce entered into an agreement with Surface Select wherein Surface Select would install a pre-cast home located at 4427 E. Zalensky Road in Cottonwood, Arizona, for the amount of $ 66,058.60.
5. Surface Select did not provide Mr. Ponce with a contract that included an approximate completion date. Additionally, the contract did not include language that advised Mr. Ponce of his right to file a complaint with the ROC against Surface Select for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A) within the time allowed A.R.S. § 32-1155(B).
6. Before work began, Ms. Kile paid Surface Select $58,558.60 for the project as conservator for Ms. Luna.
7. On February 2, 2021, Surface Select began work on the project.
8. On June 10, 2021, Surface Select stopped work on the project.
9. On or about September 8, 2021, Ms. Kile filed a complaint with the ROC alleging abandonment and poor work on the part of Surface Select.
10. On September 29, 2021, ROC Investigator Jim Dimond conducted a job-site inspection.
11. On October 18, 2021, the ROC revoked Surface Select’s license.
12. Investigator Dimond substantiated Ms. Kile’s complaint. Investigator Dimond’s job inspection notes provided, in relevant part, as follows:
Complaint Item 1- The Contractor has left the jobsite in an unsafe condition. One of the homeowners is physically disabled and wheelchair bound making the jobsite even more unsafe. The Contractor will not respond to calls or emails. The funds have been paid, but the contractor has failed to complete the job. A mobile home was purchased last year but it cannot be delivered or installed due to the Contractor's failure to complete the project. The Contractor will not refund any the amounts paid so that another contractor could be hired. The Contractor will not provide a timeline for completion, copies of permits or any other documentation.
Investigator’s Observation: Upon my arrival, I noted that a double wide manufactured home had been brought but is not set. This occurred the day before the jobsite inspection. The new septic tank is installed and the existing house is temporarily attached to it. However, that connection leaks. Additionally, the new septic tank has not been backfilled nor is the hole fenced off. This is a hazardous condition. There is also an open hole at the back of the existing home. The family has a an 8 year old child and this hole is hazardous condition. The stem wall for the home has not been started. The pedestal for the electrical has not been installed. The new well has not been drilled. The new driveway is not started. Since the new home is not complete, the existing home is contracted for demolition but that of course is not complete yet either.
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.
13. Because Surface Select’s license was revoked, the ROC did not issue a Directive.
14. On October 25, 2021, the ROC issued a Citation against Surface Select’s license. Through the Citation, the ROC alleged that Surface Select may have violated A.R.S. §§ 32-1154(A)(3) and(12); A.R.S. § 32-1158; Arizona Administrative Code R4-R9-108(a).
15. Surface Select filed a timely answer to the Citation.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. A hearing was held on April 7, 2022.
18. At hearing, Ms. Kile explained that Surface Select performed poor work under the construction contract.
19. Investigator Dimond testified regarding his investigation of the complaint.
20. Mr. Nance did not dispute that Surface Select performed poor work.
Mr. Nance explained that he was unaware of the reason that Ryan Christiansen failed to complete the project.
21. Administrative notice is taken of Respondent’s prior License record on April 26, 2022. Such prior License record reflects that Respondent’s License No. 282405 was first issued on November 30, 2012 and is revoked. Such prior License record also reflects that there are eight open complaints against Respondent’s license and that eight complaints have resulted in discipline against Respondent’s license. Such prior License record also shows that one complaint was closed against respondent that was resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 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 preponderance of the evidence shows that Surface Select 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).
4. The undisputed evidence established that Surface Select did not provide Mr. Ponce with a contract that included an approximate completion date, nor did it include language that advised Mr. Ponce of his right to file a complaint with the ROC against Surface Select for an alleged violation of A.R.S. § 32-1154(A) within the time allowed under A.R.S. § 32-1155(B).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s license number 282405.
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, April 26, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary