ALJDEC decisions subject to certification as final

2021A-05775-CHC-ROC · Registrar of Contractors · 2022-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ashley Pelton,

COMPLAINANT,

v.

Surface Select Construction, Inc.

License No. ROC 282405,

RESPONDENT.

No. 2021A-05775-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 22, 2022

APPEARANCES: Complainant Ashley Pelton 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 number 282405 issued by the Registrar of Contractors (ROC).

2. Surface Select’s owner is Patrick Nance.

3. On or about February 3, 2021, Complainant Ashley Pelton and Surface Select entered into a contract for the amount of $43,180. Under the contract, Surface Select would provide grading and drainage excavation for a manufactured home pad. The location of the project was 49012 N. 3rd Avenue, New River, Arizona, 85087 (project site).

4. On May 7, 2021, Ms. Pelton paid $15,772 to Surface Select for the plans and permits for the project.

5. The ROC revoked Surface Select’s license on October 18, 2021.

6. On or about November 10, 2021, Ms. Pelton filed a complaint with the ROC alleging abandonment on the part of Surface Select.

7. On December 13, 2021, ROC Investigator David Fagerburg conducted a job-site inspection. Investigator Fagerburg observed a vacant lot at the project site.

8. Due to Surface Select’s revoked status, Investigator Fagerburg did not issue a Directive.

9. On December 16, 2021, the ROC issued a Citation against Surface Select’s license. Through the Citation, the ROC alleged that Surface Select may have violated Arizona Revised Statutes (A.R.S.) §§ 32-1154 (A)(1) and (3); Arizona Administrative Code R4-R9-108(a).

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

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

12. On February 18, 2022, Investigator Fagerburg conducted a pre-hearing inspection and observed that Surface Select had performed no work at the project site. 13. A hearing was held on February 22, 2022.

14. At hearing, Ms. Pelton testified on behalf of herself. Mr. Nance testified on behalf of Surface Select. Investigator Fagerburg testified regarding his investigation of the complaint.

15. At hearing, Ms. Pelton explained that Surface Select performed no construction work at the project site.

16. Mr. Nance did not dispute that Surface Select abandoned the project. The Operations Manager for the project was Ryan Christiansen. Mr. Nance explained that Mr. Christiansen stopped working on the project without his permission.

17. Investigator Faberburg testified to the effect that Ms. Pelton alleged in her complaint that the permit application was rejected by the county of Maricopa.

18. Administrative notice is taken of Respondent’s prior License record on March 14, 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 nine open complaints against Respondent’s license and that seven 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.

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

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 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).

5. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. R4-9-118.

The preponderance of the evidence shows that Respondent abandoned

the contract which is a violation of A.R.S. § 32-1154(A)(1).

7. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of 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 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, March 11, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors