ALJDEC - Licensing

2022A-09267-CHC-ROC · Registrar of Contractors · 2023-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark Macias,

COMPLAINANT

Euro Fine Finishes LLC

License No. ROC 321771,

RESPONDENT

No. 2022A-09267-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 18, 2023

APPEARANCES: Complainant Mark Macias appeared and was represented by Mark Bainbridge. Sandor Bako, Owner and Qualifying Party, appeared on behalf of Respondent Euro Fine Finishes LLC, which was represented by Mark Saric.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Euro Fine Finishes LLC (Respondent) is the holder of License No. 321771 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 9, 2022, Mark Macias (Complainant) entered into a contract with Respondent for a remodel project.

During the course of the project, the work to be done changed, the cost changed, and the timeline changed, but no change orders were ever executed.

On or about October 1, 2022, Complainant asked for a meeting to discuss the financials of the project.

On or about October 3, 2022, Complainant met with Respondent to address his questions about the cost of the project.

At 9:47 a.m. on October 10, 2022, Complainant texted Respondent, “Please call me when you have a moment.”

Respondent replied, “Hi Mark, we did stop the work. I am out of state until Sunday evening. Here is the cabinets measurements. I don’t have great phone signal here.”

Complainant replied, “What does that mean when you say you stop work?”

On October 12, 2022, Complainant texted, “based on your lack of responsiveness since Monday to text messages and phone calls” and “It’s official that you abandoned the job.”

On or about October 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein 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 January 9, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint #1 Job abandonment - was paid $248,000 of a $334,130 contract, and less than 50% of the work was completed

Inspector’s Observation: I verified the job is incomplete.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.

Complaint #2 Missing material he was paid to purchase - (cabinets, front metal door, baseboards and trim, faucets, windows and lighting, vanities and paint).

Inspector’s Observation: I verified the job is incomplete.

Complaint #3 Fraudulent activity and theft - When I called the Registrar of Contractors for advice, the gentlemen that assisted me informed me that the contractor is not licensed to perform a $334,130 contract. His maximum job scope is $50,000.

Inspector’s Observation: The Respondent has a CR-61 Carpentry, Remodeling and Repairs license, for projects of $50,000 or less. Additionally the Respondent did not supply a contract or purchase a building permit.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Governing Rule: Plans Specifications and Building Code Violations 32-1154 (A)(2), Failure to comply with this Chapter, Minimum Elements of a Contract, 32-1158 (A) and Out of Scope Contracting 32-1154 (A) (16)

Following the issuance of the written directive, Respondent did not perform any further work on the project. After the deadline in the directive expired, Investigator Klein 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).

Investigator Klein testified that Respondent was contracting beyond the scope of its license as its CR-61 license had a $50,000.00 project limit. Investigator Klein further stated that, while Respondent was not obligated to obtain the building permit on the project, Respondent should not have performed any work on the project until the appropriate building permits were obtained.

Complainant testified that he never received a written contract from Respondent, but that the invoices would be updated with new amounts periodically. Complainant stated that he never signed any change orders related this project. Complainant testified that he had paid a total of $248,000.00 on the project at the time that he filed the complaint with the Registrar. Complainant maintained that he asked Respondent if permits were required and was told that technically permits were needed, but they did not need to get them because they were not adding square footage to the structure. Complainant asserted that after the October 10, 2022 text message in which Respondent stated it had stopped work on the project, he went to the project and saw all the tools and any sign of Respondent absent from the jobsite, which further indicated Respondent had abandoned the job.

Mr. Bako testified that when Complainant texted him on October 10, 2022, he was camping in Utah and did not have adequate cell reception. Mr. Bako stated that he had received the complaint from the Registrar when he returned, and therefore, he did not reach out to Complainant at that time. Mr. Bako indicated that, during the jobsite inspection, Investigator Klein told him that Respondent could not return to the project, but the parties could resolve the matter amongst themselves after he left. Mr. Bako stated that Complainant told him he would send an email outlining what he wanted from Respondent, but Mr. Bako never got that email.

Administrative notice is taken of Respondent’s prior License record on May 8, 2023. Such prior License record reflects that Respondent’s License No. 321771 was first issued on August 28, 20218, and is active. Such prior License record also reflects that there was one prior complaint that resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

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

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).

Notably, Respondent’s license type limited it to $50,000.00 project limit and Respondent was paid almost $250,000.00 on this project without a proper contract or written change orders. Furthermore, Respondent performed extensive remodel work on the project without any permits having been issued.

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. 321771.

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.

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, May 8, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Mark G. Saric, Esq.

Resolvere Law PLLC

[email redacted]

Mark J. Bainbridge, Esq.

The Bainbridge Law Firm LLC

[email redacted]

Steve Klein

[email redacted]

By: OAH Staff