ALJDEC - Licensing

2022A-03250-CHC-ROC · Registrar of Contractors · 2023-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kevin Mellor

COMPLAINANT,

v.

Oasis Construction, Inc.

License No. ROC 321338,

RESPONDENT.

No. 2022A-03250-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 17, 2023

APPEARANCES: Scott Potter, Esq. represented Complainant Kevin Mellor. Marc G. Saric, Esq. represented Respondent Oasis Construction, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On April 11, 2023, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on May 17, 2023, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. 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(A)(3)(b),(9)(c),(12), and (22).

3. 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.

4. Respondent holds license number 321338 issued by the Registrar.

5. Respondent’s qualifying party is Mauricio Teran.

6. Mr. Teran allowed Yul Nelson to use his license with the Registrar.

7. Mr. Nelson is not a licensed contractor.

8. On or about April 29, 2021, Complainant Kevin Mellor entered into a new home construction contract with a company owned by Yul Nelson, for the amount of $668,000. Mr. Nelson represented himself as the contractor. Mr. Nelson used Respondent’s license number in the contract with Complainant. Mr. Nelson’s company does not hold a license with the Registrar.

9. Complainant paid Mr. Nelson $668,000 under the contract.

10. Mr. Nelson built Complainant’s home.

11. The Registrar subsequently received a complaint from Complainant

alleging poor workmanship and abandonment on the part of Respondent. Complainant reported on the complaint from that Mr. Nelson introduced himself as the “contractor/builder”

12. On May 19, 2022, Registrar Investigator Wes Ellington conducted a job-site inspection. Investigator Ellington substantiated complaint items 1 through 7, 9 through 13, and 14 through 28.

13. On July 5, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct complaint items 1 through 7, 9 through 13, and 14 through 28, by appropriate means no later than 5:00 p.m. on July 22, 2022.

14. The Directive deadline was extended to August 17, 2022 and to September 30, 2022.

15. Complainant subsequently filed an addendum to the complaint.

16. On December 8, 2022, Investigator Ellington conducted a second job-site

inspection. Investigator Ellington substantiated addendum complaint items A31 through A50, and A52 through A62.

17. On January 6, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct complaint items 1 through 7, 9 through 13, 14 through 28, A31 through A50, and A52 through A62, by appropriate means no later than 5:00 p.m. on January 3, 2023.

18. On February 16, 2023, Investigator Ellington conducted a compliance job-site inspection. Investigator Ellington found that Respondent failed to complete the Directive items.

19. Respondent filed a timely appeal to the Citation.

20. The matter was referred to the OAH for an evidentiary hearing.

21. A hearing was held on May 17, 2023.

22. At hearing, Investigator Wellington testified regarding his investigation of the complaint, the job site inspections, and the issuance of the Directives. Complainant testified on behalf of himself. Mr. Teran testified on behalf of Respondent.

23. Respondent did not dispute that it allowed Mr. Nelson to use its contractor’s license. The evidence presented at hearing shows that during the timeframes for compliance under the Directives, Complainant normally allowed Respondent to work only three days out of the week, Thursday through Saturday. Complainant stated that Thursday, Friday, and Saturday were his only days off and he did not feel comfortable allowing Respondent in his home alone because Respondent had used unlicensed contractors in his home in the past when Complainant was not present.

24. Mr. Teran explained that his workers never received full working days and that 3-4 hours within a day does not provide enough time to complete work.

25. Upon review of the evidence, the Administrative Law Judge finds that the preponderance of the evidence shows that there were certain days where Complainant had doctor appointments and the hours for performance were less; however the two Directive extensions provided Respondent with sufficient time to perform corrective work. Respondent did not even contend that Complainant denied access to his home after the third Directive was issued.

26. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 6, 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. 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. Respondent failed to establish that Complainant denied access to Respondent to complete the Directives. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directives 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. 324892 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 6, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada

Registrar of Contractors

[email redacted]

Scott Potter, Esq.

[email redacted]

[email redacted]

Mark G. Saric, Esq.

[email redacted]

Oasis Construction, Inc.

[email redacted]

Wes Ellington

[email redacted]

By: OAH Staff