ALJDEC decisions subject to certification as final

2022A-03592-CHC-ROC-RES · Registrar of Contractors · 2022-11-17

IN IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph Gonzales

COMPLAINANT,

Elidas Residential Contracting, LLC

License No. ROC 323400,

RESPONDENT.

No. 2022A-03592-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2022

APPEARANCES: Complainant Joseph Gonzales (Mr. Gonzales) appeared on behalf of himself. No one appeared on behalf of Respondent Elidas Residential Contracting, LLC (Elidas Residential).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

On September 23, 2022, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on October 28, 2022, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

No representative for Respondent Elidas Residential

appeared at the scheduled time and the matter was convened in its absence at about 1:15 p.m. on October 28, 2022.

3. 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 Elidas Residential 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)(22). Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Elidas Residential.

4. On or about February 2, 2022, Mr. Gonzales and Elidas Residential entered into a residential repair contract for the amount of $10,500.

5. On or about February 11, 2022, Elidas Residential began work under the

contract.

6. On or about March 1, 2022, the Registrar received a Complaint from

Mr. Gonzales alleging poor workmanship on the part of Elidas Residential.

7. On or about June 9, 2022, Registrar Investigator Jack Grimm

conducted a job-site inspection.

8. On June 15, 2022, Investigator Grimm issued a Directive.

9. The June 15, 2022 Directive provided, in relevant part, as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. 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 July 6, 2022.

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DIRECTIVE REQUIREMENTS

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

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

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Complaint Item #1: 1. Didn't install 1 roof side paneling.

Investigators Observation: All four (4) sides of the home have a gable. Large gables on both ends and smaller gables front and back. Property owner states there was a discussion to replace three of the four gable end siding as it was weathered. Quote dated 1-13-22 states “Replace siding on three sides of the house, one side is in good condition.” The one not to be replaced was at the back. I observed that the front (east) and left end (south) two (2) have been replaced. The right end (north appears to be old and not replaced). The contract signed by both parties on 2-5-22 states “Provide labor and material to repair siding” I believe the expectation and agreement was to replace three of the four gable end siding and only two have been completed.

*Complete gable siding on right (north) end of the home per agreement and paint to match.

Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #4: 4. When replacing the roof fascia boards and roof paneling he lifted the shingles and they are still lifted up. Investigators Observation: It appears the fascia was replaced on the south end of the home (appears to be three pieces). The shingles above the replaced fascia is loose and has not been refastened to the roof decking. *Reattach all loose and poorly fastened shingles on the south end of the home by appropriate means.

Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner. Complaint Item #5: 5. Was supposed to sand down the roof rakes/fascia boards that were going to be reused and only painted over them. Investigators Observation: The quote dated 1-13-22 or the signed contract dated 2-5-22 do not state anything regarding sanding the fascia. Quote states “sand and paint siding at rakes” not fascia. Fascia as painted is poorly done and needs better coverage. Contract states “paint exterior of the home” that would include body and fascia. *Paint poorly painted fascia for good coverage where needed.

Governing Rule: 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.

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10. Elidas Residential failed to comply with the Directive.

11. Elidas Residential filed a timely appeal to the Citation.

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

13. A hearing was held on October 28, 2022.

14. At hearing, Mr. Gonzales testified on behalf of himself. Investigator Jack Grimm testified regarding his investigation of the Complaint, the job-site inspection, and the issuance of the Directive.

15. Mr. Gonzales explained that Elidas Residential performed poor work in connection with the residential repair contract.

16. Elidas Residential did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Elidas Residential additional time, Elidas Residential did not appear, through an authorized member, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Elidas Residential did not present any evidence to defend its license.

17. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on November 17, 2022, Elidas Residential’s license was first issued on January 29, 2019, and is suspended. Such prior License record also shows that there is one open complaint against Elidas Residential’s license. Such prior License record also shows that one complaint resulted in discipline against Elidas Residential’s license.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The suspended status of Respondent’s license does not deprive

Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

10. The preponderance of the evidence shows that Elidas Residential did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

11. The preponderance of the evidence shows that Elidas Residential violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 323400 of Elidas Residential Contracting, LLC shall be suspended for a period of five calendar days.

It is further recommended that the Registrar require Elidas Residential Contracting, LLC to pay the sum of $500.00 as a civil penalty.

It is further recommended that if Elidas Residential Contracting, LLC fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Elidas Residential Contracting, LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Elidas Residential Contracting, LLC, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Elidas Residential Contracting, LLC 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 40 days from the date of that certification.

Done this day, November 17, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Joseph Gonzales

1644 N. 56th Ave.

Phoenix, AZ 85035

[email redacted]

Elidas Residential Contracting, LLC

41989 W. Lunar St.

Maricopa, AZ 85138

[email redacted]

Jeffrey Fleetham

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

By Miranda Alvarez

Legal Secretary

-54864001

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