ALJDEC decisions subject to certification as final

2021A-04995-CHC-ROC · Registrar of Contractors · 2022-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael R Loomis,

COMPLAINANT

TRG Custom Builders LLC

License No. ROC 330349,

RESPONDENT

No. 2021A-04995-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 25, 2022

APPEARANCES: Complainant Michael R. Loomis appeared on his own behalf. Respondent TRG Custom Builders LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

TRG Custom Builders LLC (Respondent) is the holder of License No. 330349 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 5, 2021, Michael R. Loomis (Complainant) signed a contract with Respondent for a remodeling project. The contract did not include Respondent’s business address, the estimated date of completion for work under the contract, or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about October 4, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Manuel Bermudez. After a jobsite inspection, Investigator Bermudez issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 2, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "Painting not complete"

Investigator’s Observation: Verified: upon JSI inspection I observed multiple areas of poorly completed paint to include right side of sliding door, vanity face, front door threshold and trim around fireplace, and return air area.

. . . .

Compliance Item: 2 - "Drywall repair- drywall texture"

Investigator’s Observation: Verified: at time of inspection I observed in the master bathroom sink area wall areas of inconsistent texture.

. . . .

Compliance Item: 4 - "Flooring snap and lock system floor gaps caluked [sic] not installed right"

Investigator’s Observation: Verified: at time of inspection I observed multiple areas of poor work on flooring installation.

. . . .

Compliance Item: 5 - "Chiped [sic] tile at fire place"

Investigator’s Observation: Verified: at time of inspection I observed a cracked tile in front of fire place.

. . . .

Compliance Item: 6 - "Floor moldings not installed right"

Investigator’s Observation: Verified: at time of inspection I observed floor transition strip in front of fire place lifting up.

. . . .

Compliance Item: 8 - "Chips in floor tile"

Investigator’s Observation: Verified: at time of inspection I observed a chip in the living room floor tile.

. . . .

Compliance Item: 9 - "Master vanity drawer not working - gap at top"

Investigator’s Observation: Verified: at time of inspection I observed a gap at top of center drawer which was difficult to operate.

. . . .

Compliance Item: 10 - "Vanity paint job pour quality to be resprayed"

Investigator’s Observation: Verified: at time of inspection I observed that the paint on the face of the vanity was rough finish.

. . . .

Compliance Item: 11 - "Fix light at front door (chain)"

Investigator’s Observation: Verified: at time of inspection I observed excess chain on the entry door chandelier.

Following the issuance of the written directive, Respondent did not perform the corrective work. After the deadline in the directive expired, Investigator Bermudez was notified the corrective work had not been completed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on March 3, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

Upon a tentative resolution of the issues raised, the hearing was continued pending a settlement.

When the settlement failed, the hearing was reset to convene via Google Meet at 9:00 a.m. on April 25, 2022.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Bermudez indicated he did not conduct a compliance jobsite inspection because Respondent did not inform him the corrective work had been completed.

Complainant testified that he hired Respondent to ensure the work would proceed quickly without delays between trades. Complainant detailed the extensive delays and attempts to get Respondent to complete the work on the project.

Administrative notice is taken of Respondent’s prior License record on May 16, 2022. Such prior License record reflects that Respondent’s License No. 330349 was first issued on August 25, 2020, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations 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 Vazzano 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 330349 for a period of five days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, May 16, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000