ALJDEC - Licensing
2022A-01382-CHC-ROC-RHG · Registrar of Contractors · 2023-08-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Melvin Baber
COMPLAINANT,
v.
LHH/Amarillas Bros Construction, LLC
License No. ROC 323310,
RESPONDENT.
No. 2022A-01382-CHC-ROC-RHG
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 2, 2023
APPEARANCES: Complainant James Melvin Baber appeared on behalf of himself. Stephen Amarillas appeared on behalf of Respondent LHH/Amarillas Bros Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Respondent LHH/Amarillas Bros Construction, LLC holds CR-61 license that allowed Respondent to complete projects up to $50,000.
On or about August 25, 2021, Complainant James Melvin Baber and Respondent LHH/Amarillas Bros Construction, LLC, entered into a residential construction contract.
Under the contract, Complainant agreed to add a room to Complainant’s home, and replace the roof on Complainant’s home, for the amount of $83,325.
On or about August 28, 2021, Respondent started work.
On or about January 24, 2022, Respondent stopped work.
6. On or about March 2, 2022, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship and abandonment on the part of Respondent.
7. On March 23, 2022, Registrar Investigator Gregory Johndrow conducted an initial job-site inspection. At the job-site inspection, Investigator Johndrow verified 15 of the 27 items listed in the complaint. Furthermore, Investigator Johndrow discovered that Respondent:
Failed to provide Complainant with a contract that contained the minimum elements of a contract as required under Arizona Revised Statues (A.R.S.) § 32-1154(A);
Performed permit required work without a permit being obtained;
Contracted beyond the scope of its license;
Used the wrong name on the documentation; and
Contracted while its license was suspended.
8. On March 30, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct 15 complaint items, by appropriate means, no 5:00 p.m. on April 18, 2022.
9. On April 22, 2022, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated A.R.S. § 32-1154 (A)(1), (2)(A),(2)(B),(3),(8) ,(12),(14),(16),(17), and (22); A.R.S. § 32-1158; Arizona Administrative Code (A.A.C.) R4-9-108(A) and (B).
10. Respondent filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on August 2, 2023. At hearing, Complainant testified on behalf of himself. Investigator Johndrow testified regarding his investigation of the complaint and the issuance of the Directive. Stephen Amarillas, Michael Anthony Bejarano, Sr., and Michael Anthony Bejarano, Jr. testified on behalf of Respondent.
13. Investigator Johndrow explained that Respondent could not perform work under the Directive because it was not properly licensed to perform work in connection with a construction contract that exceeded the amount of $50,000. Mr. Amarillas stated that Complainant missed several progress payments. Mr. Amarillas stated that Complainant was “not happy” with his roof.
14. Mr. Amarillas alleged that permits were pulled for the projects and inspections signed off by the Inspector of Cochise County. Mr. Amarillas stated that he arranged for another contractor to come back and repair the work and Complainant refused to allow the other contractor to repair the work.
15. Mr. Bejarano, Sr. stated that Respondent passed all 7 inspections.
Mr. Bejarano stated that a permit was not necessary. Mr. Bejarano, Jr. disputed that Respondent performed poor work. Mr. Bejarano did not dispute that Respondent contract outside the scope of its license. See the Hearing Audio at 52:00 to 55:00 minutes.
16. Mr. Bejarano, Jr. stated that the roof was exempted from the permit requirement in Cochise County. Mr. Bejarano, Jr. stated that Complainant was satisfied with the roof initially. Mr. Bejarano, Jr. stated that Complainant did not complain until they started on the second side of the roof.
17. Respondent provided no written evidence in support of its case.
18. Complainant explained that Respondent abandoned the project and performed poor work. Complainant refuted that Respondent sent a contractor to his home to perform the Directive work.
19. Administrative notice is taken of Respondent’s prior License record on August 22, 2023. Such prior License record reflects that Respondent’s license number 323310 was first issued on January 18, 2019, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license. Such License record further reflects that one complaint has resulted in discipline against Respondent’s license and 2 complaints were resolved, settled, or withdrawn by the Complainant.
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, 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 Administrative Law Judge may consider the Registrar’s administrative
record. See A.A.C. R4-9-118.
The preponderance of the evidence shows that Respondent abandoned the
project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
The preponderance of the evidence shows that Respondent did not
obtain the required permit for the project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2)(a) and (b).
The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner, which is a violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).
7. The preponderance of the evidence shows that Respondent did not perform
the work perform all work in accordance with applicable building codes and professional industry standards, which is a violation of A.A.C. R4-9-108(B), and thereby of A.R.S. § 32-1154(A)(3).
8. The preponderance of the evidence shows that Respondent failed in a
material respect by the licensee to complete a construction project for the price stated in the contract, which is a violation A.R.S. § 32-1154(A)(8).
9. The undisputed evidence established that Respondent’s contract did not meet the minimum elements of contract as required under Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.
10. The preponderance of the evidence shows Respondent acted
in a name other than as set forth upon the license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(14).
11. The preponderance of the evidence shows that Respondent contracted
beyond the scope of its plumbing license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(16).
12. The preponderance of the evidence shows that Respondent contracted while its license was under suspension, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(17).
13. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive 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 License No. 323310 issued to LHH/Amarillas Bros Construction, LLC, for three days. It is further recommended that the Registrar require Respondent to pay the sum 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.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, August 22, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
James Melvin Baber
[email redacted]
LHH/Amarillas Bros Construction LLC
[email redacted]
Gregory Johndrow
[email redacted]
Martín Quezada
Registrar of Contractors
[email redacted]
By: OAH Staff