ALJDEC decisions subject to certification as final

2022A-06523-CHC-ROC · Registrar of Contractors · 2022-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phillip Kurzawski ,

COMPLAINANT

EcoScape Constructors LLC

License No. ROC 296882,

RESPONDENT

No. 2022A-06523-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 12, 2022, 9:00 A.M.

APPEARANCES: Complainant Phillip Kurzawski appeared on his own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. EcoScape Constructors, LLC (Respondent), is the holder of License Number 296882 issued by the Registrar of Contractors (Registrar).

2. On or about August 5, 2022, Phillip Kurzawski (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the installation of patio by Respondent at a residence in Munds Park, Arizona (“project”).

3. The Registrar performed an inspection of the project on August 29, 2022. Thereafter, the Registrar issued a Directive, dated August 29, 2022, requiring Respondent to correct the alleged abandonment of the project by completing the project by September 16, 2022, as follows:

Compliance Item: - Phone calls and text inquiries were continuously made to

Phil Brooks, and we only received excuses from him on why he couldn't begin. Now there is no reply from Phil Brooks or from anyone from EcoScape.; Fourteen months later, we still have partial pallets of pavers sitting in our yard.;

We are asking that our $4,100.00 be returned.

Investigator’s Observation: This complaint item is verified as abandonment.

Respondent shall correct by appropriate means.

4. The Registrar then issued a Citation to Respondent, dated September 22, 2022, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);

b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to perform work in a professional and workmanlike manner);

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

5. The Registrar issued a Notice of Hearing, dated November 8, 2022, that set a hearing for December 12, 2022, at 9:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about November 8, 2022, at its address of record.

6. A hearing was held on December 12, 2022, at 9:00 A.M. Complainant Phillip Kurzawski testified on his own behalf. Steve Philpott, the Registrar Investigator (Investigator) testified on behalf of the Registrar.

7. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on his own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license.

8. The Investigator on behalf of the Registrar testified as to his inspection of the project, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that that the pavers had been delivered, but the work had not commenced. He was informed by Complainant that no corrective work was performed.

9. Complainant Phillip Kurzawski testified that the pavers were still stacked at his residence but that Respondent did not start the project nor perform any corrective work.

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. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).

5. 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 acts:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

...

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his 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.....

6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

7. Complainant has presented sufficient evidence to demonstrate that Respondent has refused to perform work or take any corrective action and further that in so refusing, Respondent consequently has not performed work in a professional and workmanlike manner. No evidence was presented to rebut Complainant’s evidence or to support a legal excuse for refusal to complete the project or provide a valid justification for not performing any corrective work

8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), 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, EcoScape Constructors, LLC’s, License Number 296882 shall be suspended for a period of seven (7) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 (30) 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.

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, December 29, 2022.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Respondent(s)

EcoScape Constructors LLC

PO Box 17756

Munds Park, AZ 86017

[email redacted]

Complainant(s)

Phillip Kurzawski

6401 W. Bluefield Ave

Glendale, AZ 85308

[email redacted]

-54864001

001

-137160-45720000

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000