ALJDEC decisions subject to certification as final

2021A-05414-CHC-ROC · Registrar of Contractors · 2022-01-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth Reagan Duarte,

COMPLAINANT

Surface Select Construction, Inc.

License No. ROC 282405,

RESPONDENT

No. 2021A-05414-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 10, 2022

APPEARANCES: Complainant Elizabeth Reagan Duarte appeared on her own behalf. Patrick Nance appeared on behalf of Respondent Surface Select Construction, Inc. Arizona Registrar of Contractors Investigator Jack Grimm appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. Surface Select Construction, Inc. (“Respondent”) is the holder of License No. 282405 issued by the Arizona Registrar of Contractors (“Registrar”).

2. On or about August 5, 2020, Elizabeth Reagan Duarte (“Complainant”) entered into a written contract with Respondent for Respondent to obtain plans and permits, perform the grading and drainage, and install the house pad for Complainant’s modular home, as well as install the block wall foundation, the sewer line, the water line, and the electrical service. The contract price was $44,859.00. On November 25, 2020, Complainant, through her mortgage company, paid Respondent $25,838.00.

3. On or about October 25, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

4. The Registrar assigned the Complaint to Investigator Jack Grimm. Investigator Grimm conducted a jobsite inspection on November 5, 2021. Investigator Grimm’s Jobsite Inspection Notes state the following in pertinent part:

Jobsite General Notes:

No one was present representing Surface Select Construction Inc. The license for this company is revoked.

Present were property owners Liz and Edwardo Duarte.

Complaint Item #1: Abandonment. Work incomplete regarding Site plan process, Grading and drainage – house pad, block wall foundation – of home, onsite sewer, water service, electrical service.

Investigators Observation: Excavation was performed regarding cut to level house pad. No other work has been performed by Surface Select Construction Inc. The modular home is on site and leveled by others. A payout was made to Surface Select Construction Inc. by First Mortgage Corp for $25,838.00. It appears that some of the site planning process has been completed as a permit is present in the window.

5. Investigator Grimm did not issue a Written Directive to Respondent due to the revoked status of Respondent’s license, but instead, recommended to the Registrar that a Citation be issued against Respondent’s license.

6. Thereafter, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

7. Investigator Grimm testified consistently with his Jobsite Inspection Notes. Investigator Grimm further testified that the monies were paid to Respondent and were deposited into Respondent’s business account.

8. Complainant testified that she still cannot move into her home and that she had to hire two contractors to complete the work Respondent contracted to perform. Complainant testified that Respondent “dug a hole” and obtained the permit for delivery of the home. However, the permit expired and one of the replacement contractors hired by Complainant had to obtain a new permit.

9. Patrick Nance, Respondent’s President and owner, testified that Respondent’s Operations Manager, Ryan Christiansen, led him to believe “that everything was fine,” however, he later discovered that Mr. Christiansen was writing checks to himself from Respondent’s business account and had defrauded Respondent. Mr. Nance placed all blame on Mr. Christiansen, stating that he “ran the whole operation,” “did all the contracts,” and “was the responsible party.” Mr. Nance apologized to Complainant and stated that he was “scammed too.”

10. Administrative notice is taken of Respondent’s prior License record on January 12, 2022. Such prior License record reflects that Respondent’s License No. 282405 was first issued on November 30, 2012, and was revoked on October 18, 2021. Such prior License record also reflects that there are six open complaints including the instant complaint, six prior complaints resulting in discipline, and one resolved/settled complaint.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.

2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

3. Respondent’s revoked license status does not deprive Complainant of her right to prosecute her Complaint or prevent the Registrar from determining the merits of the Complaint.

4. The credible, substantial and probative evidence of record established that Respondent contracted for Complainant’s project and did not perform its scope of work. Therefore, Complainant established that Respondent abandoned its contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 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 will be forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 14, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000