ALJDEC - Licensing
2022A-10694-CHC-ROC · Registrar of Contractors · 2023-05-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jonathon Brooks,
COMPLAINANT
v.
OMG Custom Creations LLC
License No. ROC 335728,
RESPONDENT
No. 2022A-10694-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 27, 2023
APPEARANCES: Complainant Jonathon Brooks appeared on his own behalf. Respondent OMG Custom Creations LLC did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
OMG Custom Creations LLC (Respondent) is the holder of License No. 335728 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 1, 2021, Jonathan Brooks (Complainant) entered into a contract with Respondent for, among other things, outdoor tile installation.
On or about November 3, 2022, Respondent’s license was subject to a disciplinary suspension. The suspension ended on February 8, 2023.
On or about November 21, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Barry Maerker.
On January 5, 2023, Investigator Maerker conducted a jobsite inspection during which he substantiated the allegations of poor work.
On or about February 9, 2023, Respondent’s license was revoked by the Registrar.
On or about February 14, 2023, the Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
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, setting a hearing at 9:00 a.m. on April 27, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. An April 13, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on April 27, 2023.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Maerker testified as to his observations of Complainant’s project. Investigator Maerker also noted the disciplinary record of Respondent’s license and explained he did not issue a written directive to Respondent because the license was suspended at the time of the inspection.
Complainant testified that the tiles failed to properly drain. Complainant reached out to Respondent on multiple occasions regarding the standing water. Respondent indicated they would remedy the problems, but never did anything to correct the work.
Administrative notice is taken of Respondent’s prior License record on May 16, 2023. Such prior License record reflects that Respondent’s License No. 335728 was first issued on November 29, 2021, and was revoked on February 9, 2023. Such prior License record also reflects that there were no other open complaints and 11 prior complaints resulting 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.
Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
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).
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. 335728.
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 16, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
OMG Custom Creations LLC
[email redacted]
Jonathon Brooks
[email redacted]
Barry Maerker
[email redacted]
By: OAH Staff