ALJDEC decisions subject to certification as final

2021A-06482-CHC-ROC · Registrar of Contractors · 2022-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Loretta Margaret Bascelli

COMPLAINANT,

v.

BERRETT CONSTRUCTION, LLC

License No. ROC 328545,

RESPONDENT.

No. 2021A-06482-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 27, 2022

APPEARANCES: Complainant Loretta Margaret Bascelli appeared on behalf of herself. No one appeared on behalf of Respondent BERRETT CONSTRUCTION, LLC

License No. ROC 328545.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent BERRETT CONSTRUCTION, LLC (Berrett) holds License No. ROC 328545 issued by the Registrar of Contractors (the Registrar).

2. On or about April 12, 2021, Berrett agreed to build a new home for Complainant Loretta Margaret Bascelli located at 29915 N. 223rd Avenue, Wittman, AZ, 85361.

3. On or about April 12, 2021, Berrett began work under the contract.

4. On or about June 18, 2021, Berrett stopped work on Ms. Bascelli’s home.

5. On or about December 26, 2021, the Registrar received a complaint from Ms. Bascelli alleging poor work on the part of Berrett. There were 20 items listed in the complaint.

6. On or about January 11, 2022, Registrar Investigator Jim Dimond conducted a job-site inspection.

7. On or about March 15, 2022, the Registrar issued a Directive to Berrett. See the Registrar’s Administrative Record, pgs. 109-113. Through the Directive, the Registrar directed Berett to correct complaint items 3, 4, 7, 9, 10, 13, 14, 15, 16, and 21 by appropriate means, no later than 5:00 p.m. on April 4, 2022. See id.

8. Berrett failed to correct the items listed in the Directive by April 4, 2022.

9. On or about April 14, 2022, the Registrar issued a Citation against Berrett’s license. Through the Directive, the Registrar alleged that Berrett violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(2(a), 32-1154(A)(3) (specifically, A.A.C. section R4-9-108(a); A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds the alleged charges are valid, the Registrar may suspend or revoke the license of Berrett.

10. Berrett filed a timely answer to the Citation.

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

12. On May 3, 2022, the Registrar issued a Notice of Hearing setting the matter for hearing on June 7, 2022. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

13. A hearing was held on July 27, 2022.

14. At hearing, Investigator Dimond testified regarding his investigation of the complaint and the issuance of the Directive.

15. At hearing, Ms. Bascelli testified on behalf of herself. Ms. Bascelli explained that Berrett performed poor work when in the construction of her home.

16. No one appeared on behalf of Respondent at the hearing on July 27, 2022. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 17, 2022. Such prior License record reflects that Respondent’s License No. ROC 328545 was issued on April 20, 2020 and is currently active. Such prior License record shows that there is one open complaint against Respondent’s license. Such prior License record shows that Respondent’s license has not been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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, 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)

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

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent violated Ariz.

Rev. Stat. section 32-1154(A)(2)(a).

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

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

6. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 BERRETT CONSTRUCTION, LLC License No. ROC 328545 for three days. It is further recommended that the Registrar require Respondent to pay the of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, August 17, 2022.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary