ALJDEC decisions subject to certification as final

2022A-01498-CHC-ROC · Registrar of Contractors · 2022-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary Lee Wick,

COMPLAINANT

City Wide Restoration, Inc.

License No. ROC 223148,

RESPONDENT

No. 2022A-01498-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 29, 2022

APPEARANCES: Complainant Gary Lee Wick appeared on his own behalf. Zach Fralc appeared on behalf of Respondent City Wide Restoration, Inc. Arizona Registrar of Contractors Investigator Greg Johndrow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. City Wide Restoration, Inc. (“Respondent”) is the holder of License No. 223148 issued by the Arizona Registrar of Contractors (“Registrar”). Zach Fralc is Respondent’s Qualifying Party and an officer.

2. On or about September 15, 2021, Gary Wick (“Complainant”) entered into a written contract with Respondent for Respondent to replace the siding on Complainant’s manufactured home. The contract price was $3,480.45. On September 24, 2021, Complainant paid Respondent a deposit in the amount of $2,260.00. The contract specified, “NOTE: Due to heavy volume, work to commence 4-6 weeks from date of deposit.” (Emphasis in original.)

3. On or about February 22, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

4. The Registrar assigned the Complaint to Investigator Greg Johndrow. Investigator Johndrow conducted a jobsite inspection on March 14, 2022. On March 17, 2022, Investigator Johndrow 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 4, 2022.

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: “I call city wide to have them come down give me an estimate on damage in July. Around Aug 28 Andrea Boothe look over ever thing and sent me authorization and direct payment request. I sent a check #1904 for 60% down $2260.00. Keep getting the run around after 4 to 6 weeks wait. Still nothing...”

Investigator’s Observations: Verified. The complainant pointed out and showed the respondent has not performed any work to date. The contract is dated 9-15-21 and a deposit was paid on 9-24-21. As stated on the contract “work to commence 4-6 weeks from the date of deposit”. As of the date of the site inspection it has been approximately 24 weeks since the deposit was paid.

ADDITIONAL VIOLATIONS

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

verified:

Warning Letter: Elements of a Contract.

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

• An estimated date of completion

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

• Contact information for the registrar

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158

All errors in original.

On April 5, 2022, Investigator Johndrow contacted Complainant and was informed that Respondent had not performed any work on the project. Thereafter, Investigator Johndrow forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(8), and A.R.S. § 32-1154(A)(22).

Investigator Johndrow testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Johndrow testified that at the time of the jobsite inspection, approximately 24 weeks had elapsed between when Complainant paid the deposit and the issuance of the Written Directive, and pursuant to the Written Directive, Respondent was provided an additional 18 days to perform the work. Respondent failed to do so.

On June 24, 2022, Investigator Johndrow contacted Complainant and was informed that there was no change in the status of the project.

Investigator Johndrow testified that Respondent provided to the Registrar a revised contract containing all the required elements for written contracts, and consequently, Respondent was not charged with a violation of the State’s contracting laws pertaining to written contracts.

Complainant testified regarding his numerous attempts to contact Respondent via phone call and email in order to obtain information as to when Respondent would perform the work. Complainant testified that Respondent waited until three days before the expiration of the Written Directive to contact him and was told that it would be several more weeks before any work could be performed. Complainant testified that he received a check from Respondent on April 5, 2022, as reimbursement of the deposit money he paid, however, he did not cash the check.

Mr. Fralc did not dispute any of Investigator Johndrow’s or Complainant’s testimony. Mr. Fralc acknowledged that Respondent’s communication with Complainant “could have been better.” Mr. Fralc testified that when he received the jobsite inspection notice, he was in Disneyland with his children. Regarding the specific alleged statutory violations, Mr. Fralc reiterated the defenses set forth in Respondent’s Answer to the Citation.

Mr. Fralc testified that Respondent returned Complainant’s deposit at the expiration of the Written Directive, believing that was a solution to the Complaint.

Mr. Fralc asserted that Respondent “certainly could have done a better job on this” but “wants to keep his people working.” Mr. Fralc testified that although Respondent “made mistakes” as to this project, he does not feel that those mistakes are “worthy of suspension or revocation” of Respondent’s license.

Administrative notice is taken of Respondent’s prior License record on July 1, 2022. Such prior License record reflects that Respondent’s License No. 223148 was first issued on October 31, 2006, and is active. Such prior License record also reflects that there is only the instant open 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 violations 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 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(A).

The evidence did not establish that Respondent departed from or disregarded plans or specifications, as Respondent did not perform any work on the project. Therefore, Complainant did not establish that Respondent is in violation of A.R.S. § 32-1154(A)(2)(a).

The evidence, including Respondent’s own admission, established that Respondent did not complete the project for the price stated in the contract. Therefore, Complainant established that Respondent is in violation of A.R.S. § 32-1154(A)(8).

The evidence, including Respondent’s own admission, established that Respondent did not complete the corrective work following the Written Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar, without valid justification, 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. 223148 for a period of three (3) 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 (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 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, July 11, 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