ALJDEC - Licensing
2022A-10252-CHC-ROC · Registrar of Contractors · 2023-03-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bridgette Smith ,
COMPLAINANT
v.
OMG Custom Creations LLC
License No. ROC 335728,
RESPONDENT
No. 2022A-10252-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 8, 2023, 9:00 A.M.
APPEARANCES: Complainant Bridgette Smith appeared on her own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. OMG Custom Creations, LLC (Respondent), is the holder of License Number 335728 issued by the Registrar of Contractors (Registrar).
2. On or about November 7, 2022, Bridgette Smith (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with swimming pool work by Respondent at a residence in Casa Grande, Arizona (“project”).
3. The Registrar performed an inspection of the project on November 28, 2022, at which time it observed the following deficient work:
Complaint Item 2: “I spoke to him about the water Leveler not working, he came out and changed the float it still doesn't work, its leaking water somewhere he said they would do a pressure check and repair whats needed.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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: “Concrete decking around pool has large crack”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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.
4. Due to the fact that Respondent’s license was then under administrative suspension, no Directive was issued, The Registrar then issued a Citation to Respondent, dated December 20, 2022, for the alleged violation of 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).
5. 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 that set a hearing for March 8, 2023, at 9:00 A.M.
6. At the March 8, 2023, hearing, Complainant Bridgette Smith testified on her own behalf; Bennie Ortega initially appeared at the hearing on behalf of Respondent but did not testify. Jason Simpson, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits.
7. Respondent initially appeared at the hearing but due to technical difficulties, the Tribunal asked that all present call back into the hearing in 5 minutes. Although Mr. Simpson and Ms. Smith called back into the hearing, Mr. Ortega did not call back at all and calls to Respondent were unsuccessful in reaching Respondent. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not reappear at any time during the hearing.
8. The Investigator testified on behalf of the Registrar consistently with his findings contained in his job inspection notes. He also testified that although not specified in the Complaint, the waterfall was not working which he believed might be attributed also to lack of pressure.
9. Complainant Bridgette Smith testified that Respondent had promised to return to repair the items but she never heard from him.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects ent was first issued the subject license on November 29, 2021, which was revoked as of February 9, 2023.
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 revoked status of Respondent’s license does not deprive Complainant of her right to prosecute her 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:
3. Violation of any rule adopted by the registrar.
...
6. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code provides 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 demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(3) for the failure to perform work in a professional and workmanlike manner. There was no evidence presented to rebut the existence of the deficient work items.
8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) .
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, OMG Custom Creations, LLC’s, License Number 335728 is revoked.
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 27, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Bridgette Smith
[email redacted]
OMG Custom Creations LLC
[email redacted]
By: OAH Staff