ALJDEC decisions subject to certification as final
2022A-04673-CHC-ROC · Registrar of Contractors · 2022-10-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Rebecca R. Stanke
COMPLAINANT,
v.
AMERICA RECYCLEAN, LLC
DBA: America Remodel
License No. ROC 327603
RESPONDENT.
No. 2022A-04673-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 16, 2022
APPEARANCES: Complainant Rebecca R. Stanke (Ms. Stanke) appeared on behalf of herself. No one appeared on behalf of AMERICA RECYCLEAN, LLC DBA: America Remodel (AMERICA).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
1. AMERICA holds a CR-61 Carpentry, Remodeling and Repairs license, (license number 327603), issued by the Arizona Registrar of Contractors (ROC).
2. On or about September 13, 2021, Ms. Stanke and AMERICA entered into a contract wherein AMERICA would add a roof to Ms. Stanke’s deck for the amount of $100,000.
3. On or about October 20, 2021, AMERICA started work.
4. On or about June 6, 2022, AMERICA stopped work.
5. On or about June 8, 2022, Ms. Stanke filed a complaint with the ROC alleging abandonment on the part of AMERICA.
6. On June 22, 2022, ROC Investigator Steve Philpott conducted a job-site inspection. Investigator Philpott observed that AMERICA did not complete the roofing project and performed work without a permit. Investigator Philpot determined that AMERICA performed work outside the scope of his CR-61 Carpentry, Remodeling and Repairs license. Investigator Philpot concluded that AMERICA contracted for work that would require a B General Residential Contractor, or a B-3 General Remodeling and Repair Contractor license.
7. On June 22, 2022, the ROC issued a Directive to AMERICA that provided, in relevant part, as follows:
After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 11, 2022.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: - Abandonment
Investigator’s Observation: This project is verified as not completed. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed. ****NOTE****** This project is beyond the scope or your license. (For projects out of scope – “You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by other means.”)
Governing Rule: commit any of the following acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. 2. Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another. 3. Violation of any rule adopted by the registrar. RULE 4-9-108 WORKMANSHIP STANDARDS A. A contractor shall perform all work in a professional manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.
8. AMERICA did not comply with the Directive by July 11, 2022.
9. On July 13, 2022, the ROC issued a Citation against AMERICA for alleged violations of Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(1),(3) (16), and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A) and (B).
10. AMERICA filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on September 16, 2022.
13. At hearing, Ms. Stanke testified on behalf of herself. Investigator Philpott testified regarding his investigation of the complaint and the issuance of the Directive.
14. At hearing, Ms. Stanke explained that AMERICA performed poor work and abandoned the project.
15. No one appeared on behalf of AMERICA at the hearing on September 16 2022. No one filed a request to appear telephonically on behalf of AMERICA. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of AMERICA through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, AMERICA did not present any evidence to defend its license.
16. Administrative notice is taken of AMERICA’s prior License record on
October 6, 2022. Such prior License record reflects that AMERICA’s License No. 327603 was first issued on February 3, 2020 and is active. Such prior License record also reflects that there are two open complaints against AMERICA’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 abandoned the
project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
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).
6. The preponderance of the evidence shows that Respondent did not perform
the work in accordance with applicable building codes and professional industry standards, which is a violation of A.A.C. R4-9-108(B), and thereby of A.R.S. § 32-1154(A)(3).
7. The preponderance of the evidence shows that Respondent contracted beyond the scope of his CR-61 Carpentry, Remodeling and Repairs license, which is a violation of A.R.S. § 32-1154(A)(16).
8. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive 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 License No. 327603 issued to AMERICA RECYCLEAN, LLC
DBA: America Remodel, for three days. It is further recommended that the ROC require Respondent to pay the sum of $500.00 as a civil penalty pursuant 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.
Done this day, October 6, 2022.
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
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
AMERICA RECYCLEAN, LLC
DBA: America Remodel
390 W Palomino Ct
San Tan Valley, AZ 85143
[email redacted]
Rebecca R Stanke
1720 E McKellips Blvd,
Apache Junction, AZ 85119
[email redacted]
By Miranda Alvarez
Legal Secretary