ALJDEC - Licensing
2022A-08834-CHC-ROC · Registrar of Contractors · 2023-10-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Margaret Seaker
COMPLAINANT,
v.
Harrison Design Limited Liability Company
License No. ROC 326806,
RESPONDENT.
No. 2022A-08834-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 11, 2023
APPEARANCES: Complainant Margaret Seaker appeared on behalf of herself. Darrell Keith Thomas appeared on behalf of Respondent Harrison Design Limited Liability Company.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On or about October 16, 2021, Respondent Harrison Design Limited Liability Company agreed to construct a pool for Complainant Margaret Seaker, for the amount of $60,132.20.
Complainant paid Respondent $26,652.88 pursuant to the contract.
On or about May 13, 2022, Respondent started work.
On or about August 15, 2022, Respondent stopped work.
On or about September 30, 2022, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar or ROC), alleging poor work and abandonment on the part of Respondent.
According to the Registrar’s public website, Darrell Keith Thomas is the qualifying party for Respondent.
On or about November 7, 2022, Registrar Investigator Mark Nipp conducted an initial job-site inspection.
On or about November 7, 2022, the Registrar issued a Directive to Respondent 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 March 31, 2023.
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 #1: Torn up backyard and front yard, unusable back patio, irrigation system unusable since excavation – plants dying. Project may have been abandoned.
Investigator’s Observation: Verified. The complainant told me they signed the contract in October 2021, permits were obtained in May 2022, and the respondent last did work on the project in August 2022. The complainant stated they have had no contact with the respondent since August. I saw that the front yard landscape rock had been pulled away where a trench had been dug and partially refilled. There were broken irrigation lines and low voltage wiring. I saw that the back yard had open trenches and a pool had been excavated. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 2-6
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.
Governing Rule: A.R.S. § 32-1154(A) (3), 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.
On December 7, 2022, Investigator Nipp discussed the complaint with Complainant and Investigator Nipp extended the due date for compliance under the Directive to March 31, 2023.
On April 12, 2023, Investigator Nipp conducted a compliance job-site inspection.
At the compliance job-site inspection, Investigator Nipp observed that the project remained incomplete.
On or about April 17, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) 32-1154(A)(1), (A)(3), (A)(22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
Respondent filed a timely response to the Citation.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
On September 8, 2023, Investigator Nipp conducted a pre-hearing inspection. Investigator Nipp observed that the project was still incomplete.
On September 11, 2023, a hearing was conducted.
At hearing, Complainant testified on behalf of herself. Mr. Thomas testified on behalf of Respondent. Investigator Nipp testified consistently with his job-site notes, the compliance job-site inspection notes, and the issuance of the Directive.
At hearing, Complainant explained that Respondent abandoned the project and performed poor work. Mr. Thomas testified to the effect that there was an influx of demand for pools at the time that Complainant’s pool was being constructed.
Mr. Thomas stated that it was difficult for Respondent to obtain subcontractors.
Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on October 2, 2023. Respondent’s license record shows that its license was issued on November 9, 2019, and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar.
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 pool construction project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
5. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a 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 all of 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. 326806 held by Harrison Design Limited Liability Company, Inc., for three days.
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, October 2, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
By: OAH Staff
Mark Nipp
[email redacted]
Harrison Design Limited Liability Company (LLC)
[email redacted]
Margaret Seaker
[email redacted]