ALJDEC - Licensing
2022A-06011-CHC-ROC · Registrar of Contractors · 2023-02-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
William Erickson
COMPLAINANT,
v.
TEJ, Inc.
DBA: Elite Garage Doors and Gates
License No. ROC 184842,
RESPONDENT.
No. 2022A-06011-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 1, 2023
APPEARANCES: Complainant William Erickson appeared on behalf of himself. Dana NcNellis appeared on behalf of Respondent TEJ, Inc. (TEJ).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On December 11, 2020 and February 17, 2021, TEJ agreed to install a commercial door at Mr. Erickson’s residence, for the amount of $9,382.60. Mr. Erickson paid for the installation in full.
2. On or about August 30, 2022, Registrar Investigator Christopher Fultz conducted a job-site inspection.
3. On or about September 7, 2022, the Registrar issued a Directive to TEJ. Through the Directive, the Registrar directed TEJ to correct the following complaint items, by appropriate means, no later than September 28, 2022:
Compliance Item: 1 - Poor installation of the roll-up door. Constantly has a grinding metal sound when opening and closing.
Investigator’s Observation: There is a grinding/binding sound when the door opens. It is not common for a roll up door of this type. This will need to be fixed.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 2 - When we agreed to the contract amount for the new roll-up door using the existing Liftmaster 1/2hp motor we were told after installation of the roll-up door that the motor would not lift/open the door causing us to pay $1,190.22 for a new 3/4hp Liftmaster opener. Poor installation of the new 3/4hp Liftmaster opener and related wiring. Investigator’s Observation: Manufacture of the door states the 1/2 hp Liftmaster should have no issues with operations of the door. However, The contractor had to sell a 3/4 hp Liftmaster for the door. The door is still not functioning properly. This needs to be fixed.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - During the extreme temperature swings this summer the Liftmaster opener will open the door but not close it.
Investigator’s Observation: The 3/4hp Liftmaster that was sold as an upgrade does not close the roll up door. This needs to be fixed.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
4. On or about June 27, 2022, Mr. Erickson filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor work on the part of TEJ.
5. On October 7, 2022, the Registrar issued a Citation to TEJ alleging that TEJ had violated Ariz. Rev. Stat. section 32-1154(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(A), and Ariz. Rev. Stat. section 32-1154(A)(22).
6. TEJ filed a timely answer to the Citation.
7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. A hearing was held on February 1, 2023.
9. At hearing, Mr. Erickson testified on behalf of himself and presented the testimony of his wife, Laverna Erickson. Mr. McNellis testified on behalf of TEJ.
10. Investigator Fultz testified consistently with his job-site inspection notes and the issuance of the Directive.
11. Mr. and Mrs. Erickson explained that TEJ performed poor work when it installed the commercial door at their home.
12. Mr. McNellis contacted Investigator Fultz during the timeframe for compliance with the Directive and provided him with an updated e-mail address.
Mr. McNellis explained that TEJ was not aware of the Directive or the job-inspection because the e-mail address that was on record with the Registrar belonged to TEJ’s owner who rarely checked the e-mail. Although Mr. McNellis requested that the Registrar reschedule the job-site inspection, Investigator Fultz declined because it was close to the end of the Directive period.
13. Administrative notice is taken of Respondent’s prior License record on February 20, 2023. Such prior License record reflects that Respondent’s license number 184842 was first issued on May 1, 2003, and is active. Such prior License record also reflects that there were no other open or prior complaints against 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.
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. The preponderance of the evidence shows Respondent failed to perform
work in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to
correct the items listed in 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 ROC License: No. 184842 held TEJ, Inc. DBA: Elite Garage Doors and Gates one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that 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.
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, February 20, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
William Erickson
34141 W Pecan Rd
Tonopah, AZ 85354
[email redacted]
TEJ, Inc.
DBA: Eilte Garage Doors & Gates
7652 E Greenway Rd Ste. 100
Scottsdale, AZ 85260
[email redacted]
[email redacted]
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Chris Fultz
[email redacted]
By: OAH Staff