ALJDEC decisions subject to certification as final

2022A-00180-CHC-ROC · Registrar of Contractors · 2022-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Laura Parks,

COMPLAINANT

Desert Rays Construction, LLC

License No. ROC 305231,

RESPONDENT

No. 2022A-00180-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 12, 2022

APPEARANCES: Complainant Laura Parks appeared on her own behalf. Mario Novales appeared on behalf of Respondent Desert Rays Construction, LLC. Arizona Registrar of Contractors Investigator Doug Barrett appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Desert Rays Construction, LLC (“Respondent”) is the holder of License No. 305231 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about June 19, 2021, Laura Parks (“Complainant”) entered into a written contract with Respondent for Respondent to install a “W Pan Awning” at Complainant’s residence. The contract specified that “all work to be completed within 120 days from date of contract.” The contract price was $4,723.16. On June 21, 2021, Complainant paid Respondent 50% of the contract price, in the amount of $2,361.59.

On or about January 6, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Doug Barrett. Investigator Barrett issued an “Acknowledgment Letter” to Respondent on January 10, 2022, requesting a response to the allegations set forth in the Complaint within ten days. Respondent did not provide a response.

Investigator Barrett conducted a jobsite inspection on February 8, 2022. Respondent did not appear for the scheduled inspection, notwithstanding having been sent a Jobsite Inspection Notice on January 26, 2022.

Investigator Barrett did not issue a Written Directive to Respondent, but instead, forwarded the Complaint to the Registrar’s Legal Department for the issuance of a Citation against Respondent’s license.

The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on April 12, 2022, at 1:00 p.m. Complainant testified on her own behalf. Mario Novales, qualifying party, member and owner, testified on behalf of Respondent. Investigator Barrett appeared as a witness.

Investigator Barrett testified that Complainant provided proof of payment to Respondent in the amount of $2,361.59.

Investigator Barrett testified consistently with his Jobsite Inspection Notes which state the following:

Jobsite General Notes: The Complainant was present but no one from the

Respondent was present. The Respondent was sent an acknowledgment letter and did not respond and also did not respond to the jobsite inspection.

Compliance Item: 1 - We put 50% deposit down in June, it is now 6 months

later and the job hasn’t even been started. Delays were due to COVID, supply chain issues, family illness, warehouse issues. Now we can’t get the business to respond to us.

Investigator’s Observation: Verified. I observed the residence with no awning installed or any materials on site per the contract. It appears the project has been abandoned after the complainant’s deposit was paid.

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

Complainant testified that she was in constant communication with Respondent until Thanksgiving 2021, however, since that time, Complainant has had no communication from Respondent. Complainant testified that Respondent never began the project, no work has been performed due to constant delays, notwithstanding that the installation was scheduled for August 2021, and she paid Respondent a 50% deposit.

Mr. Novales did not dispute any of Investigator Barrett’s or Complainant’s testimony. Mr. Novales testified that the delays in the project were due to an inability to obtain the required materials from the manufacturer because of supply chain issues caused by the COVID-19 pandemic, as the aluminum for the awning was imported from China. Mr. Novales explained that the delay was exacerbated by the fact that in October 2021, he and his son had COVID, resulting in no sales, installations, or revenue during that period of time, and thereafter, he tore his meniscus. Mr. Novales testified that because of his health issues, he lost twelve weeks of work. Mr. Novales testified that Respondent is “at a standstill,” and has 26 jobs that are still awaiting materials.

Administrative notice was taken of Respondent’s prior License record on April 13, 2022. Such prior License record reflects that Respondent’s License No. 305231 was first issued on May 25, 2016. Such prior License record also reflects that there are four open complaints including the instant Complaint, no complaints resulting in discipline, and no resolved/settled complaints.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violation 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.”

The evidence established that Respondent contracted and was paid for Complainant’s project and did not perform any work. Accordingly, Complainant established that Respondent abandoned the contract without legal excuse in violation of A.R.S. § 32-1154(A)(1).

Complainant established that she paid Respondent $2,361.59 toward the project and no work was completed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 305231 for a period of five (5) days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $2,361.59 as restitution pursuant to A.R.S. § 32-1156.01.

It is further recommended that if Respondent fails to pay the entire amount of the restitution on or before thirty (30) 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 restitution.

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, April 14, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary