ALJDEC - Licensing
2022A-02463-CHC-ROC · Registrar of Contractors · 2023-06-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lindsay Milazzo
COMPLAINANT,
v.
Oasis Construction, Inc.
License No. ROC 321338,
RESPONDENT.
No. 2022A-02463-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 22, 2023
APPEARANCES: Scott Potter, Esq. appeared on behalf of Complainant Lindsay Milazzo. Mark G. Saric, Esq. appeared on behalf of Respondent Oasis Construction, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. At all times relevant to this matter, Respondent Oasis Construction, Inc. allowed Yul Nelson to use its license number in exchange for Mr. Nelson providing subcontracting work for Respondent.
2. Mr. Nelson is not a licensed contractor in the State of Arizona.
3. On or about May 2, 2021, Complainant Lindsay Milazzo entered into a new home construction contract with Yul Nelson for the amount of $678,780.00.
3. Ms. Milazzo paid the contract in full.
4. On or about July 31, 2021, Mr. Nelson started work.
5. On or about February 3, 2022, Mr. Nelson completed the job.
6. On or about March 29, 2022, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Respondent.
7. On or about April 28, 2022, Investigator Wellington conducted a job-site inspection.
8. On or about June 2, 2022, Complainant requested that additional items be added to the complaint.
9. On or about June 23, 2022, the Registrar issued a Directive directing Complainant to correct complaint items 1, 4, 5, 10, 11, 13 through 32, 34, 36 through 44, A1 through A4, A8, A10, A11, A13 through A A15, A19 through A33, A38 and A39, and A41 through A46, by appropriate means, no later than 5:00 p.m. on July 15, 2023.
10. The Registrar extended the timeframe for performance under the Directive to August 17, 2022, August 31, 2022, and November 18, 2022.
11. Complainant filed a second addendum subsequent to the June 23, 2022 Directive.
12. On December 8, 2022, Investigator Wellington conducted a second job-site inspection.
13. On January 3, 2023, the Register issued an Amended Directive adding addendum items A51-A53. The due date for compliance under the January 3, 2023 Directive was January 27, 2023.
14. On February 22, 2023, Investigator Wellington conducted a compliance job-site inspection. Investigator Wellington found that Respondent correctly repaired complaint items 3, 5, 20, 26, 28, 32, 34, 36, 38, 44, A3, A4, A8, A11, A14, A20, A25, A38, A39, and A46. Investigator Wellington found that Respondent failed to correctly repair complaint items 1, 4, 10 through 14, 15 through 19, 21 through 25, 27, 29 through 31, 37, 39 through 43, A1, A2, A10, A13, A15, A19, A21, A22, A23, A26 through A33, A41 through A45, and A51 through A53.
15. On April 13, 2023, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on May 22, 2023, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
16. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent Oasis Construction, LLC, may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. sections 32- 1154(9)(c) and (22).
17. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
18. Respondent filed a timely answer to the Citation.
19. A hearing was held on May 22, 2023.
20. At hearing, Ms. Milazzo testified on behalf of herself. Mauricio Teran, Respondent’s qualifying party, testified on behalf of Respondent. Investigator Wellington testified regarding the investigation of the complaint and the issuances of the Directives.
21. Investigator Wellington did not conduct destructive testing of the floor in his investigation.
22. Ms. Milazzo explained that Mr. Nelson and Respondent performed poor work in the construction of her home. Ms. Milazzo stated that Respondent failed to correct the foundation slab according to the engineer’s recommendations. Ms. Milazzo stated that the engineer instructed Respondent to perform proper grading, place gutters on the house, and repair the foundation slab. Ms. Milazzo stated that the engineer directed Respondent to correct the foundation slab by using Frankenstein stiches of carbon fiber or rebar on the biggest cracks. Ms. Milazzo stated that she observed the entire repair job and Respondent failed to use rebar or carbon fiber stitches. Mr. Milazzo stated that Respondent simply filled the cracks with epoxy.
23. Mr. Teran explained that he repaired the foundation slab according to the engineer’s recommendations. Respondent received a written report from the engineer regarding his recommendations. Mr. Teran was unable to explain how he would use rebar or fiber to repair the foundation on cross-examination. Mr. Teran stated that the engineer told him that he could cut out every 18 inches and fill it in with epoxy.
Mr. Teran was unsure if the instruction regarding the epoxy was in the engineer’s written report.
24. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 12, 2023, Respondent’s license was first issued on July 30, 2018, and is active. Such prior License record also shows that there are four complaints against Respondent’s license. Respondent’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.
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 preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner, in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).
The preponderance of the evidence shows that Respondent attempted to
evade Ariz. Rev. Stat. Title 32, Chapter 10, by allowing its license to be used by an unlicensed person, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(9)(c).
5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directives with respect to complaint items 1, 4, 10 through 14, 15 through 19, 21 through 25, 27, 29 through 31, 37, 39 through 43, A1, A2, A10, A13, A15, A19, A21, A22, A23, A26 through A33, A41 through A45, and A51 through A53, 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. 321338 issued to Respondent Oasis Construction, Inc., 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. sections 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, June 12, 2023.
/s/ Velva Moses-Thompson Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile June 12, 2023 to:
Martín Quezada
Registrar of Contractors
[email redacted]
Scott L. Potter, Esq.
[email redacted]
Lindsay Milazzo
[email redacted]
Mark G. Saric, Esq.
Resolvere Law, PLLC
[email redacted]
Oasis Construction, Inc.
45312 W. Portabello Rd
Maricopa, AZ 85139
Wes Ellington
[email redacted]
By: OAH Staff