ALJDEC decisions subject to certification as final
2021A-06230-CHC-ROC · Registrar of Contractors · 2022-04-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Vanessa Garcia,
COMPLAINANT,
v.
Empire General Contracting, LLC,
License No. ROC 327239,
RESPONDENT.
No. 2021A-06230-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 11, 2022
APPEARANCES: Vanessa Garcia appeared on behalf of herself. Erick Ledezma appeared on behalf of Empire General Contracting, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about October 28, 2021, Respondent Empire General Contracting, LLC (Empire) agreed to install a fireplace in Complainant Vanessa Garcia’s home.
2. On or about November 15, 2021, Empire started work.
3. On or about November 24, 2021, Empire stopped work.
4. On or about November 29, 2021, the Arizona Registrar of Contractors (ROC) received a complaint from Ms. Garcia alleging abandonment and poor work on the part of Empire.
5. On or about December 28, 2021, Registrar Investigator Jack Grimm conducted a job-site inspection. Investigator Grimm substantiated compliant items 1 through 10.
6. On or about December 29, 2021, the ROC issued a Directive to Empire. The ROC directed Empire to correct items 1 through 10 by appropriate means no later than January 19, 2022. See the ROC’s administrative record, pgs.. 31-33.
7. During a compliance inspection on February 2, 2022, Investigator Grimm found that Empire had not corrected the Directive items.
8. On March 7, 2022, the ROC issued a Citation against Empire’s license.
Through the Citation, the ROC alleged that Empire may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); R4-9-108(a).
9. Empire filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on April 11, 2022.
12. At hearing, Investigator Grimm testified regarding his investigation of the complaint and the issuance of the Directive.
13. Ms. Garcia explained that Empire performed substandard work when it installed the fireplace in her home. Mrs. Garcia explained that Mr. Ledezma came to correct the Directive items during the timeframe for compliance under the Directive.
Ms. Garcia explained that after Mr. Ledezma arrived, her children told her that Mr. Ledezma and her husband were fighting. Mrs. Garcia stated that she heard Mr. Ledezma call her husband outside to “take care of business.” Mrs. Garcia called law enforcement to her home.
14. Mr. Ledezma explained that Mrs. Garcia continued to change the way that she wanted the fireplace installed. Mr. Ledezma denied that he yelled at Mrs. Garcia’s husband because he does not behave in such a manner with customers. Mr. Ledezma explained that after the police arrived, he gathered his materials and left Ms. Garcia’s home.
15. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 28, 2022, Empire’s license was first issued on December 24, 2019 and is active. Such prior License record also shows that there is only one open complaint against Empire’s license. Such prior License record further shows that the ROC has never disciplined Empire’s license. Empire’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.
CONCLUSIONS OF LAW
This matter lies within the ROC’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 the ROC’s administrative record. See A.A.C. 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).
6. The preponderance of the evidence shows that Respondent failed to install the fireplace in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
7. The evidence presented at hearing shows that Mr. Ledezma and
Mrs. Garcia’s husband had a disagreement and law enforcement was contacted. However, the record is insufficient to establish that Empire had valid justification for failing to correct the Directive items. The preponderance of the evidence shows that Respondent failed to correct the items listed in the ROC’s Directive without valid justification, which is a 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 ROC shall suspend License No. ROC 327239, held by Empire General Contracting, LLC, for one day.
It is further recommended that the ROC require Respondent to pay the sum of $100.00 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 ROC’s final order, the ROC 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, April 28, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary