ALJDEC - Licensing
2022A-04372-CHC-ROC · Registrar of Contractors · 2023-06-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darrel Deokieal
COMPLAINANT,
v.
Avantgarden Design + Build, LLC
License No. ROC 290552,
RESPONDENT.
No. 2022A-04372-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 12, 2023
APPEARANCES: Complainant Darrel Deokieal represented himself. Keith Galbut, Esq. represented Respondent Avantgarden Design + Build, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Avantgarden Design + Build, LLC holds license number 290552 issued by the Arizona Registrar of Contractors (Registrar).
2. Respondent’s qualifying party is Todor P. Spasov.
3. Respondent built a house located at 809 E. Fairmount Avenue, Phoenix, AZ 85014 (the home).
4. In or around September of 2020, Complainant Darrel Deokieal purchased the home from Boris Spasov.
5. On or about May 31, 2022, Complainant filed a complaint with the Registrar alleging poor work on the part of Respondent.
6. On July 7, 2022 and July 18, 2022, Complainant filed addendums to the complaint with additional complaint items.
7. On July 25, 2022, Respondent’s license was suspended for non-renewal.
8. On or about August 30, 2022, Registrar Investigator Lisa Melton conducted an initial job-site inspection.
9. On September 12, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct complaint item numbers 1, 4 through 7, 10, 12, 13, and 24, by appropriate means, no later than 5:00 p.m. on September 29, 2022.
10. On September 13, 2022, Complainant inquired with Investigator Melton by e-mail regarding Respondent’s responsibility for complying with the Directive. See the Registrar’s Administrative Record, pg. 81. Complainant asked Investigator Melton, “What is the next step to address the repairs the Respondent is responsible for?”. See id.
11. On September 13, 2022, Investigator Melton responded to Complainant, in relevant part, as follows, “...At this point, it is the responsibility of the respondent to contact you regarding a financial settlement to close the directive. Their license remains suspended.” See the Registrar’s Administrative Record, pg. 82.
12. On September 28, 2022, Mr. Spasov notified Investigator Melton by e-mail that he paid the fee to re-instate his license the prior week. In the e-mail, Mr. Spasov requested an extension of the timeframe to correct the items listed in the Directive.
Mr. Spasov also notified Investigator Melton that he had an objection to Complaint Item 1 of the Directive.
13. On September 29, 2022, Investigator Melton notified Mr. Spasov by e-mail that the Directive could be extended. The e-mail provided in relevant part, as follows, “Yes, the date can be extended. I have a call with the Complainant scheduled for 5pm with the Complainant. I will issue an amended Directive after we speak. I have photos of areas where the flashing edge is covered in stucco. The original Directive remains in effect.”
14. On October 5, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct complaint item numbers 1, 4 through 7, 10, 12, 13, and 24, by appropriate, means no later than 5:00 p.m. on October 20, 2022.
15. On October 14, 2022, a City of Phoenix Inspector inspected the roof on Complainant’s home. The City of Phoenix Inspector found several deficiencies in the roof. See the Registrar’s administrative record, pgs. 405-406 and 415. Complainant filed an addendum to the complaint based on information Complainant received from the City of Phoenix Inspector.
16. On November 3, 2022, Investigator Melton conducted a job-site inspection regarding the October 14, 2022 addendum.
17. On November 16, 2022, the Registrar issued an Amended Directive adding complaint items 25 through 30 to the Directive issued on October 5, 2022.
See the Registrar’s Administrative Record, pgs. 123-130.
18. The deadline for compliance under the November 16, 2022 Directive was December 16, 2022. See the Registrar’s Administrative Record, pg. 123.
19. On January 9, 2023, Investigator Melton conducted a compliance job-site inspection. Investigator Melton concluded that Respondent appropriately corrected complaint items 7, 13, and 24. Investigator Melton concluded that Respondent failed to appropriately correct complaint items 1, 4, 5, 6, 10, 12, and 24 through 30.
20. On January 25, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(b), (A)(3), (A)(22), and Arizona Administrative Code (A.A.C.) R4-9-108(b).
21. Respondent filed a timely answer to the Citation.
22. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
23. On April 7, 2023, Investigator Melton conducted a pre-hearing inspection. Investigator Melton concluded that the only items that had not been repaired correctly were complaint items 1, 25, 25, 27, 28, and 29.
24. A hearing was held on May 12, 2023.
25. At hearing, Complainant testified on behalf of himself.
26. Investigator Melton testified regarding her investigation of the complaint and the issuances of the Directives.
27. Respondent presented the testimony of Mr. Spasov.
28. Complainant explained that Respondent performed poor work and failed to comply with the Directive. Mr. Spasov contended that all work in the Directive was correctly repaired with the exception of Complaint Item 1. Ms. Spasov contended that the City of Phoenix failed to provide a clear standard regarding the repairs for complaint items 1 and 25 through 29.
29. Administrative notice is taken of Respondent’s prior License record as
reflected on the Registrar’s public website on June 1, 2023. Such prior License record reflects that Respondent’s License No. ROC 290552 was issued on March 23, 2014 and is active. Such prior License record shows that there is only one open complaint against Respondent’s license. Such prior License record shows that the Registrar has never disciplined Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. §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, 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. The preponderance of the evidence shows that violated A.R.S. § 32-1154(A)(2)(b).
5. The preponderance of the evidence shows that Respondent’s work failed
to comply with applicable building codes and professional industry standards, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).
6. The preponderance of the evidence shows that Respondent correctly repaired complaint items 4, 5, 6, 10, 12, 24, and 39. The preponderance of the evidence shows that Respondent failed to correct complaint items 1, 25, 26, 27, 28, and 29 without valid justification, which is a 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 Avantgarden Design + Build LLC License No. ROC 290552 or two days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 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.
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 1, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada
Registrar of Contractors
[email redacted]
Darrel Deokieal
[email redacted]
Maci R. Burke, Esq.
Keith Galbut, Esq.
[email redacted]
[email redacted]
Avantgarden Design + Build LLC
[email redacted]
Lisa Melton
[email redacted]
By: OAH Staff