ALJDEC decisions subject to certification as final
2022A-04403-CHC-ROC · Registrar of Contractors · 2022-11-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tanner Daniel Fonseca
COMPLAINANT,
v.
Exclusive Builders, LLC
License No. ROC 287942,
RESPONDENT.
No. 2022A-04403-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 1, 2022
APPEARANCES: Complainant Tanner Daniel Fonseca appeared on behalf of himself. Moises Moreno appeared on behalf of Respondent Exclusive Builders, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. According to the Arizona Registrar of Contractors’ (Registrar or ROC) public website, on October 24, 2013, the Registrar issued License KB-2 DUAL RESIDENTIAL AND SMALL COMMERCIAL, No. ROC 287942 to Respondent Exclusive Builders, LLC (Exclusive Builders). Such license record shows that Moises Moreno and Jose De Jesus Garcia Jr are members of Respondent. Such license record shows that Respondent’s physical address is 7208 S. 15th Ln, Phoenix, AZ, 85041.
2. Mr. Moreno is the qualifying party for Respondent.
3. Respondent processes its invoices through Quick Books. See
Mr. Moreno’s testimony on the Hearing Audio record (0913 2022-11-01).AAC (HAR) at 14:01 to 17:08 minutes. Respondent enters into contracts with its clients for construction work. Respondent’s invoices bear the company logo. See id.
4. On or about February 9, 2022, Complainant Tanner Daniel Fonseca purchased a home from Grow Investments, LLC (Grow) located at 801 E. Orchid Lane, Phoenix, AZ 85020 (the property). See the ROC’s administrative record, pgs. 43-49.
5. Grow provided an invoice to Complainant for the duct work performed at the property as proof of completion of the items listed in the BINSR. See the Complainant’s testimony on the HAR at 11:55 – 13:40 seconds. The name of the contractor listed on the invoice was “Exclusive Builders LLC.” See the ROC’s administrative record, pg. 62. The invoice did not include a company logo.
The invoice included the name “FreshBooks cloud accounting.” The invoice included Respondent’s ROC number and physical address. See id.
6. Respondent did not perform work at the property. See the HAR at 14:01 to 17:08 minutes. Mr. Moreno nor Mr. Garcia Jr. have ever met Mr. Fonseca. See id. However, a permit was pulled in Respondent’s name that listed work to be performed at the property. See the Complainant’s testimony on the HAR at 11:55 -13:40 seconds. Respondent has not had contact with Grow. See the HAR at 14:01 to 17:08 minutes.
7. On or about May 31, 2022, Complainant filed a complaint with the ROC alleging that Respondent performed poor work on his HVAC system.
8. ROC Investigator Steven Avila conducted an initial job-site inspection. 9. On July 26, 2022, the ROC issued a Directive to Respondent to correct the duct work and obtain all required city permits, no later than August 12, 2022.
10. Respondent did not perform the corrective work.
11. On September 28, 2022, the ROC issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(b), (3), and (22); Arizona Administrative Code R4-9-10(A).
12. Respondent filed a timely answer to the Citation. In the answer, Respondent denied that Respondent performed work at the property. Respondent explained that it had no documents showing that it performed work at the property. Respondent explained that its invoices bear a company logo. However, the invoice submitted by Mr. Fonseca does not have a company logo. Respondent provided a copy of Mr. Fonseca’s and its own invoice with its answer. See the Registrar’s administrative record, pgs. 62-63.
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. A hearing was held on November 1, 2022.
15. At hearing, Mr. Fonseca testified on behalf of himself. Mr. Moreno testified on behalf of Respondent. Investigator Avila testified regarding his investigation of the complaint and the issuance of the Directive.
16. Mr. Moreno denied that Respondent performed any work at the property. Mr. Fonseca offered no other evidence other than the invoice to prove that Respondent performed work at his home.
17. Based on the credible testimony of Mr. Moreno, the Administrative Law Judge concludes that Respondent did not perform construction work at the property.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that the preponderance of the evidence does not show that Respondent violated Statutes (A.R.S.) § 32-1154(A)(2)(b), (3), and (22); Arizona Administrative Code R4-9-10(A).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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.
Done this day, November 21, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Tanner Daniel Fonseca
801 E. Orchid Ln
Phoenix, AZ 85020
[email redacted]
Exclusive Builders, LLC
7208 S. 15th Ln
Phoenix, AZ 85041
[email redacted]
Jeffrey Fleetham
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Steven Avila
[email redacted]
By Miranda Alvarez
Legal Secretary