ALJDEC decisions subject to certification as final

2022A-07239-CHC-ROC · Registrar of Contractors · 2023-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Frederick J. Abramek,

COMPLAINANT

DEA Remodeling LLC

License No. ROC 315981,

RESPONDENT

No. 2022A-07239-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2023

APPEARANCES: Complainant Frederick J. Abramek appeared on his own behalf. Respondent DEA Remodeling LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

DEA Remodeling LLC (Respondent) is the holder of License No. 315981 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 17, 2022, Frederick J. Abramek (Complainant) entered into a contract with Respondent for a closet remodel.

On or about August 24, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator John Peru. On September 26, 2022, after a jobsite inspection, Investigator Peru issued a written directive to Respondent that provided 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 October 12, 2022.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - "Drawer Face wrong size."

Investigator’s Observation: Verified.

At the time of this Inspection, the top right Drawer Front of the Drawer Bank is smaller than the adjacent drawer. (p 1, P 2)

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 - "Missing (2) Cabinet Fronts for the Hamper Tilt out."

Investigator’s Observation: Verified.

At the time of this Inspection, the (2) Hamper cavities do not have the "Tilt out Cabinet Fronts "as per contract. (p 3).

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 - "Closet Clothes Rods are not the correct finish (chrome) as per contract."

Investigator’s Observation: Verified.

At the time of this Inspection the Closet Rods/cups are not of a chrome finish as per contract. (P 4, P 5).

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: 4 - "Missing Handles that were paid for, per contract."

Investigator’s Observation: Verified.

At the time of this Inspection, there are missing Chrome Crescent Handles as per contract.

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.

Following the issuance of the written directive, Respondent did not perform any additional work. After the deadline in the directive expired, Investigator Peru was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

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, setting a hearing at 1:00 p.m. on January 4, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A December 19, 2022 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on January 4, 2023.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Peru testified as to his observations of the project. Investigator Peru stated he had no contact from Respondent during the course of the complaint investigation indicating to him that Respondent was taking no actions to comply with the written directive.

Complainant testified that he could not recall if Respondent had reached out to him after the Written Directive was issued and before the deadline expired, but stated that his communications from Respondent were vague and not specific indications that it would complete the corrective work as required.

Administrative notice is taken of Respondent’s prior License record on January 24, 2023. Such prior License record reflects that Respondent’s License No. 315981 was first issued on October 19, 2017, and was revoked on November 7, 2022. Such prior License record also reflects that there were six open complaints and four prior complaints resulting in revocation of Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in 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 revoke Respondent’s License No. 315981.

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 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 any outstanding prior civil penalty.

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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, January 24, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

John Peru

[email redacted]

DEA Remodeling LLC

2400 N Arizona Ave Apt 1050

Chandler AZ 85225-1250

[email redacted]

Frederick J Abramek

7352 N 128th Ave

Glendale, AZ 85307

[email redacted]

By: OAH Staff-54864001

001

-137160-45720000