ALJDEC decisions subject to certification as final
2022A-08044-CHC-ROC · Registrar of Contractors · 2023-02-06
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-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Joan Mizzell
COMPLAINANT.
v.
Pink Restoration, LLC
License No. ROC 317853
RESPONDENT.
No. 2022A-08044-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 17, 2023
APPEARANCES: Complainant Joan Mizzell (Ms. Mizzell) appeared on behalf of herself. Carlo Reyes appeared on behalf of Respondent Pink Restoration, LLC (Pink Restoration).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Pink Restoration holds license number 317853 issued by the Arizona Registrar of Contractors (ROC).
2. Carlos Reyes is a co-owner of Pink Restoration.
3. On or about August 28, 2021, Ms. Mizzell and Pink Restoration entered into a residential remodeling contract for the amount of $20,000.
4. Ms. Mizzell paid Pink Restoration $10,000 pursuant to the contract.
5. In or around September of 2021, Pink Restoration began work on the project.
6. On September 13, 2022, Ms. Mizzell filed a complaint with the ROC alleging poor workmanship against the license of Pink Restoration.
7. On October 7, 2022, ROC Investigator Steve Hammons conducted a job-site inspection.
8. On October 7, 2022, the ROC issued a Directive to Pink Restoration 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 October 24, 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 reasons, 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: complete all work per contract, obtain all required permits and inspections- forward me, Investigator S. Hammons#203 all permit documentation (applications- inspection results).
Complaint Item 1: “it has been over a year since the work was started and is still not completed-”
Investigator’s Observations: Verified. I observed this project to be unfinished
Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item 3: “rood over new addition is leaking where new addition connects to existing home”
Investigator’s Observations: Verified. The compliant pointed out and showed me extensive water damage in side the entrance on the drywall ceiling and wall
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: “roofer put small drains pointing over door which now leaking between stucco and frame-”
Investigator’s Observations: Verified. The complainant pointed out and showed me the area above the entrance door to have flashing inset of the stucco and terminated over the front entrance door
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “new sidewalk is unlevel by 1⁄2” which drains towards garage-”
Investigator’s Observations: Verified. I placed a level on the concrete in front of the entrance door, this area does not have positive fall away from the structure as required by code
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 7: “floor in new addition is unlevel by 1⁄2””
Investigator’s Observations: Verified. I placed a level on the floor on the inside of the new entrance the floor is not level
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 9: “painting cannot be completed until stucco issues are completed-” Investigator’s Observations: Verified.
Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item 12: “no sealing was not put between new exterior wall and door frame-”
Investigator’s Observations: Verified. The complainant pointed out and showed me the area to be void of caulking
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 13: “front door was not sealed-”
Investigator’s Observations: Verified. Same as item 12 above
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 14: “refusal to paint...”
Investigator’s Observations: Verified. I observed the project to be void of paint
Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
9. Pink Restoration failed to comply with the Directive by the due date.
10. On or about November 10, 2022, the ROC issued a Citation against Pink Restoration’s license. Through the Citation, the ROC alleged that Pink Restoration violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(1), (3), and (22); Arizona Administrative Code (A.A.C) R9-4-108 (a) and (b).
11. Pink Restoration filed a timely answer to the Citation.
12. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
13. A hearing was held on January 17, 2023.
14. At hearing, Investigator Hammons testified consistently with his job-site inspection notes.
15. Ms. Mizzell testified on behalf of herself. Mr. Reyes testified on behalf of Pink Restoration.
16. Ms. Mizzell testified to the effect that she tried to contact Pink Restoration several times but was unsuccessful. Mr. Reyes testified to the effect that he sent text messages to Ms. Mizzell to complete work, but she did not respond. Mr. Reyes admitted that there was no justification for the delay in the completion of construction project.
17. Administrative notice is taken of Respondent’s prior License record on February 6, 2023. Such prior License record reflects that Respondent’s license number 317853 was first issued on February 22, 2018 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 that Respondent abandoned the contract, which is a violation of A.R.S. § 32-1154(A)(1), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
7. The preponderance of the evidence shows that Respondent failed to perform work in accordance with professional industry standards, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).
8. Respondent failed to establish that Ms. Mizzell refused to allow Respondent
access to her home to make repairs under the Directive. The preponderance of the evidence shows that Respondent failed to correct the items listed in the ROC’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 ROC License: No. 317853 held by Pink Restoration, LLC for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A) (7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, February 6, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Joan Mizzell
7100 S. Camino Libertad
Tucson, AZ 85746
[email redacted]
Pink Restoration, LLC
P.O. Box 35508
Tucson, AZ 85740
[email redacted]
Steve Hammons
[email redacted]
Jeffrey Fleetham
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]