ALJDEC - Licensing
2022A-09587-CHC-ROC · Registrar of Contractors · 2023-03-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michelle Asterino ,
COMPLAINANT
v.
Steadfast Electrical Services LLC
License No. ROC 329326,
RESPONDENT
No. 2022A-09587-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 2, 2023, 1:00 P.M.
APPEARANCES: Complainant Michelle Asterino appeared on her own behalf; Rich Villwock, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Steadfast Electrical Services, LLC (Respondent), is the holder of License Number 329326 issued by the Registrar of Contractors (Registrar).
2. On or about October 20, 2022, Michelle Asterino (Complainant), filed a Complaint against Respondent with the Registrar alleging poor electrical work by Respondent at a residence in Scottsdale, Arizona (“project”).
3. The Registrar performed an inspection of the project on December 15, 2022, and confirmed the following:
Complaint Item: 1 - He was up in our attic supposedly changing wires that were
flickering and he never did the work. My wires in attic are a mess and I am afraid of a fire.
Investigator’s Observation: There doesn't appear to have been any new
work done for this item.
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.
Complaint Item: 6 - Put up a new fan and have the light working THIS LIGHT STILL DOES NOT WORK
Investigator’s Observation: The light function of the fan is not working.
Needs to be addressed.
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.
Complaint Item: 7 - I gave him $1150 to pick up LED lights for under my
counters in kitchen and dining room and tape lights for the in side of the glass cabinet doors. He did not purchase the correct amount because when he came to install them there were not enough. I paid him to install the lights that I paid for above.... He did one little part and then said he wasn’t feeling well and would be back the next day to finish but we never saw him again.
Investigator’s Observation: The LED lighting was in the cabinets was fixed
by another contractor.
The remaining issue is the under counter top lighting. The ROC doesn't have a specific standard on this type of work. However, The finished work has noticeable issues. The lighting isn't uniform and has dark spots as well as areas that appear to be lines in the work.
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.
4. Thereafter, considering that Respondent’s license had at that time been suspended due to lack of renewal, the Registrar then issued a Citation to Respondent, dated December 27, 2022, for the alleged violation of the following:
a. 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);
b. A.R.S. § 32-1154(A)(17) (contracting while license is under suspension).
5. The Registrar issued a Notice of Hearing, dated December 27, 2022, that set a hearing for March 2, 2023, at 1:00 P.M.
6. At the March 2, 2023 hearing, Complainant Michelle Asterino testified on her own behalf; Respondent presented the testimony of Rich Villwock, Owner. Chris Fultz, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits. The Tribunal left the hearing open until March 8, 2023, to allow both parties the opportunity to submit copies of any written communications between the parties and any photographs and also an email timeline that Complainant indicated she submitted to the Registrar. Respondent submitted nothing further but Complainant submitted a photograph and copies of cancelled checks she wrote to Respondent, but there was no notation on the checks identifying the specific work performed.
7. The Investigator testified on behalf of the Registrar consistently with his job inspection notes. He stated many of items in the Complaint had been repaired by other contractors so he could not inspect the initial alleged deficient work. He further testified that he discovered Respondent’s license had not been renewed since July 2022. He stated that with regard to Complaint item number 6, it was the fan and not the light that was not working.
8. As herein relevant to the Citation, Michelle Asterino testified that Respondent failed to repair the wiring in the attic or the ceiling fan wiring. She indicated she made notes of the checks and the work performed but did not submit them at the hearing into evidence. She further did not present her timeline that she indicated she had previously submitted to the Registrar.
9. As herein relevant to the Citation, Rich Villwock, owner of Respondent, testified on behalf of Respondent that he did not do any work involving wiring in the attic nor did he install or repair any ceiling fans. He stated Complainant had another electrician before him. With regard to the countertop lighting, he testified further that Complainant did not have the correct type of stone as recommended by the manufacturer of the LED lighting.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on June 16, 2020, which is now active and renewed through June 30, 2024. The site also reflects no previous disciplinary cases.
.
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 suspended or inactive status of Respondent’s licenses does not deprive Complainant of the right to prosecute a complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
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:
...
3. Violation of any rule adopted by the registrar.
...
17. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.
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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3) with regard to Complaint item number 7. The testimony of the Investigator that the lighting was not uniform under the countertop and that there were dark spots was sufficient to meet Complainant’s burden. Respondent submitted that Complainant used the wrong type of stone as recommended by the LED manufacturer, but did not provide any documentary proof to substantiate this claim. With regard to Complainant Item numbers 1 and 6, Complainant did not present sufficient evidence to show that those items were part of the scope of work of Respondent or that Respondent performed any work with regard to those items.
8. A.R.S. § 32-1154(A)(17). Complainant has presented sufficient evidence to establish that Respondent Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status in violation of A.R.S. § 32-1154(A)(17). Respondent did not dispute this charge but explained it had been unaware its license had expired.
9. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Complaint Item number 7, and for a violation of A.R.S. § 32-1154(A)(17).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Steadfast Electrical Services, LLC’s, License Number 329326 is suspended for two days.
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, March 28, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Michelle Asterino
[email redacted]
Steadfast Electrical Services LLC
[email redacted]
By: OAH Staff