ALJDEC decisions subject to certification as final

2021A-04931-CHC-ROC · Registrar of Contractors · 2022-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arriva Condominium Association,

COMPLAINANT,

v.

Rigid Masonry, Inc.

License No. ROC 269438,

RESPONDENT.

No. 2021A-04931-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2022

APPEARANCES: Emily Mann, Esq. appeared on behalf of Complainant Arriva Condominium Association. No one appeared on behalf of Respondent Rigid Masonry, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On January 29, 2021 and April 6, 2021, Complainant Arriva Condominium Association (Arriva) and Respondent Rigid Masonry, Inc. (Rigid) entered into contracts for the total amount of $71,859 wherein Rigid would improve the common elements within Arriva.

2. The contracts did not include an estimated date of completion, information about Arriva’s right to file a complaint with the Registrar of Contractors (ROC), nor contact information for the ROC. See the ROC’s administrative record, pgs. 3

and 4.

3. On or about January 29, 2021, Rigid started work.

4. On or about September 13, 2021, Rigid stopped work.

5. On or about September 30, 2021, Arriva filed a complaint with the ROC against Rigid. Through the complaint, Arriva alleged that the project was incomplete, that Arriva did not build according to the engineering plans, and that Rigid’s license was suspended on April 7, 2021.

6. On October 20, 2021, ROC Investigator Jason Simpson conducted a job-site inspection. Cliff Ullman and Joel Watson attended the job-site inspection on behalf of Arriva. Joel Watson is an engineer. No one attended the job-site inspection on behalf of Rigid. Investigator Simpson verified that the project was not completed according to the contract. Investigator Simpson verified that the project was not constructed according to the engineering plans. Investigator Simpson also verified that Rigid’s license had been suspended since December of 2020.

7. On November 1, 2021, the ROC issued a Directive to Rigid. Through the Directive, the ROC ordered Rigid to correct complaint items 1a and 2 by appropriate means, no later than 5:00 p.m. on November 17, 2021. The November 1, 2021 Directive provided in relevant part, as follows:

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1a: “The project remains incomplete” Investigator’s Observation: This allegation is verified as the responsibility of the respondent. I observed the work onsite has not been completed per contract. Reference Pictures:

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “Some of the work completed does not comply with engineering plans.”

Investigator’s Observation: This allegation is verified. This investigator observed that the work had not complied per the plans and specs.

Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: “Contractor’s license was suspended on April 7, 2021.”

Investigator’s Observation: This allegation is verified. Respondent license has been suspended since 12/1/2020. The contract date was 01/29/2021.

Governing Rule: A.R.S. § 32-1154(A)(17): Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

8. Rigid failed to correct the items listed in the Directive by November 17, 2021.

9. On December 7, 2021, the ROC issued a Citation to Rigid. Through the Citation, the ROC alleged that Rigid may have violated Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(3),(12),(17),(22); A.R.S. section 32-1158; Arizona Administrative Code (A.A.C.) R4-R9-108(a).

10. Rigid filed a timely answer to the complaint.

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

12. A hearing was held on February 23, 2022.

13. Rigid presented the testimony of Arriva’s Community Manager Cliff Ulman and submitted exhibits 1 through 12. Investigator Simpson testified regarding his investigation of the complaint.

14. Mr. Ulman explained that Rigid failed to complete the work under the contract. Mr.Ulman explained that Rigid did not correct its poor work during the timeframe for compliance under the Directive.

15. No one appeared on behalf of Rigid at the hearing on February 23, 2022.

No one filed a request to appear telephonically on behalf of Rigid. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Rigid through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Rigid did not present any evidence to defend its license.

16. Administrative notice is taken of the ROC’s public website. According to the information available on the website on March 15, 2022, Rigid’s license was first issued on November 18, 2010, and has expired. Such prior License record also shows that there are two open complaint against Rigid and two complaints have resulted in discipline against Rigid’s license.

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.

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

4. 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).

5. The preponderance of the evidence shows that Respondent did not provide Complainant with contracts that included an estimated date of completion, information about Arriva’s right to file a complaint with the Registrar of Contractors (ROC), and the contact information for the ROC. Therefore, the Administrative Law Judge concludes that Respondent violated A.R.S. section 32-1154(12) and A.R.S. section 32-1158.

6. The preponderance of the evidence shows that Respondent contracted while its license was suspended, which is a violation of A.R.S. section 32-1154(A)(17).

7. The preponderance of the evidence shows that the issues found

by Investigator Thomas at the job-site inspection demonstrate that Respondent failed to perform work in compliance with professional industry standards in violation of A.R.S. section 32-1154(A)(3); namely A.A.C. R4-9-108(a).

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

correct the Directive items without valid justification, which is a violation of A.R.S. section 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. 266258 held by Rigid Masonry, Inc. for five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. section 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. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 forty days from the date of that certification.

Done this day, March 15, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors