ALJDEC decisions subject to certification as final

2022A-04426-CHC-ROC · Registrar of Contractors · 2022-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeremiah Simmons ,

COMPLAINANT

5 Star Construction LLC

License No. ROC 328211,

RESPONDENT

No. 2022A-04426-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 26, 2022, 1:00 P.M.

APPEARANCES: Complainant Jeremiah Simmons appeared on his own behalf; there was no appearance by or on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. 5 Star Construction LLC (Respondent), is the holder of License Number 328211 issued by the Registrar of Contractors (Registrar). The Registrar web site currently shows the license to be in inactive status.

2. On or about June 1, 2022, Jeremiah Simmons (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of a block wall fence by Respondent at a residence in Sierra Vista, Arizona (“project”). The Complaint reflected a contract amount of $6,600.00.

3. The Registrar performed an inspection of the project on July 7, 2022. Thereafter, the Registrar issued a Directive, dated July 12, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 28, 2022, as follows:

Compliance Item 1 - Block Fence is unlevel, not straight.

Investigator’s Observation: Wall is very wavy, looking down the wall it

moves up and down with the terrain

Compliance Item: 2 - Mortar joints are already failing

Investigator’s Observation: Several areas where mortar joints are not

stable, blocks are moving.

Compliance Item: 3 - Mortar joints left unpointed

Investigator’s Observation: Poorly done mortar joints, some have voids

in bed.

Compliance Item: 4 - Cap blocks falling off

Investigator’s Observation: Several cap blocks are falling off.

Compliance Item: 5 - Structural soundness of block fence questionable.

Block wall has shifted since construction

Investigator’s Observation: Second pillar in from the street is visibly

leaning approx 2-3 inches towards the home.

4. When the Registrar was informed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated August 18, 2022, for the alleged violation of the following:

a. A.R.S. §32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. §32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract;

c. A.R.S. §32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, dated August 25, 2022, that set a hearing for September 26, 2022, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about August 25, 2022, at its address of record.

6. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person, nor did the Arizona Office of Administrative Appeals receive any communication from Respondent regarding its appearance or non-appearance at the hearing. Consequently, Respondent did not present any evidence to defend its license.

7. At the September 26, 2022, hearing, Complainant Jeremiah Simmons testified on his own behalf. Mike Springer, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

8. The Investigator testified on behalf of the Registrar as to his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified as to the Directive items and the deficiencies with regard to the block wall including an unlevel wall, grout missing, loose blocks, and structural integrity. He also testified the contract for the project was missing the contractor’s business address and license number, name and address of the owner and the jobsite address, the date the parties entered into the contract, the estimated date of completion, and the disclosure of rights with regard to the Registrar.

9. Complainant Jeremiah Simmons testified that the contract amount was $6,600.00. He also testified that Respondent did not contact him upon the issuance of the Directive, but only recently showed up on or about September 12, 2022, at his home unannounced to look at the wall but indicated he would not grant Respondent permission to go into the back yard.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

12. Failure in any material respect to comply with this chapter.

...

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein including the following information:

...

9. 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. 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. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....

7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). No evidence was presented to dispute existence of the Directive items.

8. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A). Respondent’s contract failed to include contractor’s business address and license number, name and address of the owner and the jobsite address, the date the parties entered into the contract, the estimated date of completion, and notification of Complainant’s right to file a complaint with the Registrar.

9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent made no contact with Complainant during the Directive period nor was there any evidence presented of a valid justification for the lack of contact or the lack of corrective action.

10. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, 5 Star Construction LLC’s License No. 328211 is suspended for two days.

IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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)(5), unless Respondent tenders payment of the outstanding prior civil penalty.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, October 12, 2022.

/s/ Roger Geddes______

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Jeremiah Simmons

3101 Oak Hill St

Sierra Vista, AZ 85650

[email redacted]

5 Star Construction LLC

306 4th St

Sierra Vista, AZ 85635

[email redacted]

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary