ALJDEC decisions subject to certification as final

2022A-01271-CHC-ROC · Registrar of Contractors · 2022-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly R Cilano,

COMPLAINANT

LOBO ELECTRIC LLC

License No. ROC 328208,

RESPONDENT

No. 2022A-01271-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 20, 2022

APPEARANCES: Complainant Kelly R. Cilano appeared on her own behalf. John R. Villalobos, Owner and Qualifying Party, appeared on behalf of Respondent LOBO ELECTRIC LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

LOBO ELECTRIC LLC (Respondent) is the holder of License No. 328208 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 10, 2021, Kelly R. Cilano (Complainant) entered into a contract with Respondent for, among other things, the installation of a “new 200 Amp service on freestanding Unistrut rack to accommodate future expansion of building.” The contract did not include an estimated date of completion, the amount of the deposit and progress payments, the signature of the parties, or an advisement that the homeowner had the right to file a complaint with the Registrar of Contractors.

On or about February 14, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 6, 2022.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to complete work per contract and to remedy the following violations by the appropriate means:

Complaint Item 1: “Abandonment of project.”

Investigator’s Observations: Verified.

Scope of work specified in the contract:

• Install new 200 Amp service on freestanding Unistrut rack to accommodate future expansion of building.

• Install wave rib and risers per TEP requirements for new feeder wires.

• Install conduit to existing building to refeed load center with 125 Amp capabilities and...

• ...transfer A/C to new service.

• Pima County Permit

• New ground rods and water bonds

• Breakers

• Conduit and feeder wires for existing load center

• 200 Main Breaker All in One

Current status of the project:

• New panel housing installed on unistrut structure, but loose and not secure

• Conduit installed from new panel to utility company distribution box, but not complete or connected – no wiring in new conduit.

• No conduit or wiring from new panel to house.

Contract Date: June 10, 2021

Date work started: June 15, 2021

Date work stopped / last performed: September 2021

. . . .

Complaint Item 4: “broken electrical box”

Investigator’s Observations: Verified.

Unistrut structure installed to support main electric panel is loose, not secure.

Unistrut legs are installed in concrete filled buckets only.

Buckets are not secure in ground.

Structure is not secure.

Conduit to panel connection is broken and has caused damage to the bottom of the panel.

. . . .

Complaint Item 5: “an open trench waiting to be finished about 3-4 ft deep on the side yard.”

Investigator’s Observations: Verified.

The trench from the new main panel to the house has been dug.

No conduit has been installed to connect the new panel to the main house.

The trench remains open.

The trench near the utility company distribution box is open as well.

. . . .

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract.

Investigator’s Observations: The respondent’s contract is missing the following information:

• An estimated date of completion

• The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

• The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

• Information about the customer’s right to file a complaint with the registrar

Information is included; however, the information is mis-identified as A.R.S. 32-1158 (b) and is not in at least 10 point bold type.

• Contact information for the registrar

Information is included; however, the information is mis-identified as A.R.S. 32-1158 (b) and is not in at least 10 point bold type.

• A signature of the property owner.

• A signature of the contractor.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158;and A.R.S. § 32-1154(A)(22).

Investigator Smith testified as to his observations of the project during the jobsite inspection. Investigator Smith also noted the required elements of the contract that were missing. Investigator Smith indicated that Respondent included a form contract with its answer to the citation that had all the required elements of a contract.

Complainant testified that she entered into the contract with Respondent on June 15, 2021, and work on the project started around that time. Complainant indicated that work on the project stopped in August or September 2021. Complainant asserted that the open trenches in her backyard presented a safety hazard.

Mr. Villalobos testified that pursuant to the contract, Respondent was not responsible for any excavation or backfill on the project. Therefore, Respondent had to wait until Complainant completed the excavation of the trenches before beginning the work on the project. After Complainant notified him that the trenches were complete, Mr. Villalobos attempted to perform his work only to learn that the trenches were much larger than necessary. Mr. Villalobos took it upon himself to do some backfill by wheelbarrow to get the project to a point where he could perform the work he had contracted to do. Mr. Villalobos stated that, after he installed the panel, he told Complainant the trenches needed to be filled so he could call for an inspection. After some period of time, Complainant advised him that the trenches had been filled. Mr. Villalobos returned to the jobsite only to find that the panel had been moved and damaged. Mr. Villalobos stated that Complainant told him her son may have hit the panel with the equipment and, that they decided they wanted to change the configuration of the project. Mr. Villalobos testified that he informed Complainant that the changes she was proposing would result in additional work and a change in the cost of the project. Mr. Villalobos represented that after he emailed the updated cost to Complainant, he did not hear anything for a couple of months. Complainant contacted Mr. Villalobos and denied having received the updated information. Mr. Villalobos testified he resent the information in December 2021, and was waiting to hear from Complainant with a decision on the proposed changes. Mr. Villalobos maintained that his email address with the Registrar was not up to date, so he did not receive numerous communications from the Registrar during this process including the written directive. Mr. Villalobos acknowledged it was his responsibility to ensure that his contact information was up to date with the Registrar.

Administrative notice is taken of Respondent’s prior License record on July 19, 2022. Such prior License record reflects that Respondent’s License No. 328208 was first issued on March 20, 2020, and was suspended for non-renewal on April 1, 2022. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 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).

The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in 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 Registrar shall suspend Respondent’s License No. 328208 for a period of five days.

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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 40 days from the date of that certification.

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-137160-45720000Done this day, July 19, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary

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