ALJDEC - Licensing
2022A-03685-CHC-ROC-RHG · Registrar of Contractors · 2023-07-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kelly Beckner
COMPLAINANT,
v.
AMAZING RAKES, LLC
License No. ROC 336741,
RESPONDENT
No. 2022A-03685-CHC-ROC-RHG
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 20, 2023
APPEARANCES: Complainant Kelly Beckner represented himself. Enrique Diaz represented Respondent AMAZING RAKES, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
1. On or about April 22, 2020, Complainant Kelly Beckner and Respondent AMAZING RAKES, LLC, entered into a residential remodeling contract for the amount of $8,625.00.
2. Enrique Diaz is the qualifying party for Respondent.
3. Complainant paid Respondent $6,500 under the contract.
4. On or about May 4, 2020, Respondent started work.
5. On or about July 15, 2020, Respondent stopped work.
6. On or about May 6, 2022, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor work on the part of Respondent.
7. On June 14, 2022, Registrar Investigator John Smith conducted an initial job-site inspection.
8. On June 20, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct the following items by appropriate means, no later than 5:00 p.m. on July 7, 2022:
Complaint Item 1: “The artificial turf was not installed properly;”
Investigator’s Observations: Verified. As explained by the complainant, there are: • Gaps around the perimeters of the installed turf • Visible seams • Areas where the turf is too high in comparison to the adjoining hardscapes • Areas of visible wear in the turf The respondent acknowledged all issues and stated all will be corrected.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 2: “The side gate was removed and was not put back properly and does not shut properly;”
Investigator’s Observations: Verified. The hinge side of the gate is loose from the block wall/column. The respondent acknowledged this happened during their work.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “The stain on the deck is no where near the color or the finish that was discussed and chosen it looks worse now than before they started;”
Investigator’s Observations: Verified. The respondent acknowledged the incorrect color and sheen of the stain, and further stated this will be corrected.
Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes...
Complaint Item 4: “There is stain overspray all over my patio, house and all around the perimeter of my pool and on the tile etc..;”
Investigator’s Observations: Verified. As stated by the complainant, there are: • Areas of stain on the stucco and pre-existing concrete patio • Stains on the deco drain that runs through the pavers • Stains on the pool tile, related grout, and related plastic molding strip The respondent acknowledged all occurred during their work, and further stated all will be corrected.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 5: “The pavers next to the deck were to be releveled and sealed. There is missing locking sand pieces of pavers and the incorrect sealer was used and now they are all discolored and look horrible;”
Investigator’s Observations: Verified. The respondent acknowledged the issues with the pavers, and further stated he will be correcting the issues by replacing the pavers. Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “The LV wiring was to be replaced and new LV fixtures were to be installed only half of the wiring was replaced the fixtures dont work and 3 of them do not stand up;”
Investigator’s Observations: Verified. The respondent acknowledged the issues with the low voltage lighting, and related wiring, and further stated that all will be corrected. Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 7: “Their skid steer put a whole in my block wall...”
Investigator’s Observations: Verified. There is a hole through one side of the back block perimeter wall, approximately 2-1/2 inches in diameter. The respondent acknowledged this happened during their work.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
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:
Incorrect name of the contractor o The contract lists the contractor’s name as Amazing Rakes Landscaping, LLC
The registered name of the contractor is AMAZING RAKES, LLC
The contractor’s ROC number
An estimated date of completion
Information about the customer’s right to file a complaint with the registrar Contact information for the registrar
A signature of the property owner
A signature of the contractor
Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.
Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:
1: The name of the contractor and the contractor's business address and license number.
2: The name and mailing address of the owner and the jobsite address or legal description.
3: The date the parties entered into the contract.
4: The estimated date of completion of all work to be performed under the contract.
5: A description of the work to be performed under the contract.
6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.
9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. 9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...
9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.
REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158
Warning Letter: Wrong name.
Investigator’s Observations: The contract lists the contractor’s name as Amazing Rakes Landscaping, LLC
The registered name of the contractor is AMAZING RAKES, LLC
Governing Rule: A.R.S. § 32-1154(A)(14): Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.
REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance.
9. On July 29, 2023, Investigator Smith conducted a compliance job-site inspection. Investigator Smith concluded that Respondent failed to correct the items listed in the Directive by the due date.
10. During his investigation, Investigator Smith discovered that Respondent hired an unlicensed subcontractor to perform corrective work.
11. On August 3, 2022, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3),(9)(A),(12),(14),(22); Arizona Administrative Code (A.A.C.) R4-9-108(A) and A.R.S. § 32-1158.
12. Respondent field a timely answer to the Citation.
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. A hearing was held on June 20, 2023.
15. At hearing, Complainant testified on behalf of himself. Enrique Diaz testified on behalf of Respondent.
16. Investigator Smith testified regarding his investigation of the complaint and the issuance of the Directive.
17. Complainant explained that Respondent performed poor work when it remodeled his home.
18. Mr. Diaz stated that he has made many attempts to resolve the matter with Complainant but was unsuccessful. Mr. Diaz stated that Complainant had not paid for the full paint job.
19. Administrative notice is taken of Respondent’s prior License record on July 10, 2023. Such prior License record reflects that Respondent’s license number 336741 was first issued on February 23, 2022, and is active. Such prior License record also reflects that there is only one open complaint against Respondent’s license. Such prior License record also shows that the Registrar has never disciplined Respondent’s license.
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 violated
Ariz. Rev. Stat. section 32-1154(A)(9)(A) as alleged.
5. The undisputed evidence established that Respondent’s contract lacked several elements required for a contract including a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of 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.
6. The preponderance of the evidence shows Respondent acted with an unlicensed person, and in the capacity of a contractor under a license issued under Ariz. Rev. Stat. Title 32, Chapter 10, in a name other than as set forth upon the license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(14).
7. 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. 336741 issued to Respondent Plumbing Services, 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.
Done this day, July 10, 2023.
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 is forty days after the date of that certification.
/s/ Velva Moses-Thompson
Administrative Law Judge
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, July 11, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
John Smith
[email redacted]
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Kelly Beckner
12573 N Stone Pillar Dr
Cortaro, AZ 85653
[email redacted]
AMAZING RAKES, LLC
2810 W Oasis Rd
Oro Valley, AZ 85742
[email redacted]