ALJDEC decisions subject to certification as final

2021A-06448-CHC-ROC · Registrar of Contractors · 2022-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alexis Heath,

COMPLAINANT

Surface Select Construction Inc,

License No. ROC 282405,

RESPONDENT

No. 2021A-06448-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 28, 2022

APPEARANCES: Complainant Alexis Heath was present via Google Meet along with her husband, Ralph Heath. Patrick Nance was present via Google Meet on behalf of Respondent Surface Select Construction Inc. Registrar of Contractors Investigator David Fagerburg was present via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

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

On or about September 3, 2020, Alexis Heath (Complainant) agreed to have Respondent prepare Complainant’s property for the contraction of a manufactured home. Respondent was supposed to perform the grading and excavation on the land, install a PVC water line, install a 200AMP electrical pedestal with main breaker, and obtain all of the necessary permits. The total paid was $45,503.00.

On or about January 4, 2022, the Registrar received a Complaint containing one item against Respondent from Complainant alleging abandonment of the project.

The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on January 14, 2022.

In Investigator Fagerburg’s Inspection Notes, the following was noted:

Compliant Item 1: no work was done at all

Investigator’s Observation: At this jobsite investigation I observed a vacant lot located at 50329 N 23rd Dr. New River Arizona 85087. See P (1) thru P (3). In the complaint documents provided by the complainant a check in the amount of $43,503.00 was issued to the respondent dated 12-10-2020 from First Horizon Bank as a down payment to provide a house pad, block wall foundation, water service line, alternative wastewater system, electrical service pedestal and driveway. During this jobsite investigation I observed and am able to verify that there was no work performed by the respondent per the estimate/contract dated 8-31-2020.

Governing Rule: ARS §32-1154 (A) (1) (Abandonment)

(All errors contained in the original)

On January 19, 2022, the Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

On or about February 1, 2022, Respondent e-mailed an Answer to the Registrar, stating that he believed he was a victim of a fraud perpetrated by a former business partner.

On or about February 18, 2022, a Notice of Hearing was issued setting a hearing on March 28, 2022, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Fagerburg testified as to the Registrar’s involvement and the above timeline.

Investigator Fagerburg testified that Respondent failed to appear at the Jobsite Inspection and the prehearing inspection on March 23, 2022. He testified that based upon his observation, zero work had been done on the property and referenced the photographs attached to his jobsite inspection notes.

Investigator Fagerburg also testified that even if there were issues with Respondent’s partners, the license-holder still remains responsible for all projects.

Ralph Heath testified for Complainant. He testified that Ryan Christiansen came out and contracted with him regarding the project.

Mr. Health testified that communication with Mr. Christiansen would be “hit or miss”, and that the company that was providing the manufactured home also tried to contact Respondent for status updates.

Finally, Mr. Heath testified that Mr. Nance too never contacted him regarding the status of the project.

Next, Mr. Nance testified on behalf of Respondent.

Mr. Nance stated that he was very sorry for the situation. He testified that he relied on Mr. Christiansen to set up new clients and schedule the jobs. Mr. Nance also testified that Mr. Christiansen did the books and walked away with all of the company’s money.

Administrative notice is taken of Respondent’s prior License record on April 11, 2022. Such prior License record reflects that Respondent’s License No. 282405 was first issued on November 30, 2012 and was revoked as of October 18, 2021.

CONCLUSIONS OF LAW

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 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.” Fagerburg K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent abandoned the project as no work was performed. Further, the excuse provided by Mr. Nance was not a legal excuse, rather simply ignorance of what his business partner was doing. There was also no effort demonstrated by Mr. Nance to reach out to the Heath’s to even try to remedy the situation. This is unacceptable. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(1).

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.

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)(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 30 days from the date of that certification.

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-137160-45720000Done this day, April 11, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By: Miranda Alvarez

Legal Secretary