ALJDEC decisions subject to certification as final

2021A-04786-CHC-ROC · Registrar of Contractors · 2022-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Letitia Torres,

COMPLAINANT,

v.

Surface Select Construction, Inc.

License No. ROC 282405,

RESPONDENT.

No. 2021A-04786-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 14, 2022

APPEARANCES: Complainant Letitia Torres appeared on behalf of herself. 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, Inc. (Surface Select) holds

License No. 282405 issued by the Arizona Registrar of Contractors (ROC).

2. Patrick Nance owns Surface Select.

3. On or about March 10, 2021, Surface Select agreed to build a manufactured home for Complainant Letitia Torres for the amount of $64,070.

Ms. Torres paid Surface Select $38,494 pursuant to the contract.

4. Surface Select did not provide Ms. Torres with a written contract that advised Ms. Torres of her right to file a complaint with the ROC against Surface Select for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

5. Surface Select did not install the manufactured home.

6. On or about September 24, 2021, the ROC received a complaint from

Ms. Torres alleging abandonment on the part of Surface Select.

7. The ROC assigned Investigator Jack Grimm to investigate the complaint.

8. On or about October 18, 2021, Investigator Grimm conducted an initial job-site inspection. Investigator Grimm substantiated complaint item 1 from Ms. Torres’s complaint. Investigator Grimm’s job-site inspection notes provided, in relevant part, as follows:

........

Complaint Item #1: Surface Select did not start the project of installing the manufactured to a livable home. Investigators Observation: Single wide manufactured home is on site. Homeowners state it was delivered by others and currently is not in the correct location for final setup. Property owners state they contacted the code jurisdiction and no documents have been submitted for permits. No work as outlined on the contract has been performed. Contract/invoice is dated 3-1-21, project appears to be abandoned by contractor. Governing Rule: 32-1154(A)(1) Abandoning a contract or refusing to perform a bid without legal excuse. 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workman like manner.

......................

9. On October 18, 2021, the ROC revoked the License No. 282405 held by Surface Select. As a result, the ROC did not issue a Directive against the license of Surface Select.

10. On October 27, 2021, the ROC issued a Citation against License No. 282405 held by Surface Select. Through the Citation, the ROC alleged that Surface Select may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a)); Ariz. Rev. Stat. sections 32- 1154(A)(1),and (12); Ariz. Rev. Stat. section 32-1158.

11. Surface Select filed a timely answer to the Citation.

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

13. A hearing was held on January 14, 2022.

14. At hearing, Ms. Torres testified on behalf of herself. Mr. Nance testified on behalf of Surface Select. Investigator Jack Grimm provided testimony regarding his investigation of the complaint.

15. Ms. Torres explained that Surface Select abandoned the project.

16. Mr. Nance explained that Ryan Christiansen was his former business associate and the operations manager for Ms. Torres’s project. Mr. Christiansen informed Mr. Nance that he had crews at the project and that everything was going well. Mr. Nance later learned that Mr. Christiansen stole over $150,000 from Surface Select. Mr. Nance expressed sorrow for Mr. Torres’s experience.

CONCLUSIONS OF LAW

1. The ROC has jurisdiction over this matter, pursuant to Ariz. Rev. Stat.

section 32-1101, et seq., which authorizes the ROC to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.

2. The revoked status of Respondent’s license does not deprive Complainant

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

3. To warrant such sanctions by the ROC, Complainant must demonstrate

by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

4. The preponderance of the evidence shows that Respondent abandoned the

project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

5. 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).

6. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the ROC for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 280264 of Surface Select Construction, Inc.’s is revoked.

Done this day, February 1, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors