ALJDEC - Licensing

2022A-10795-CHC-ROC · Registrar of Contractors · 2023-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jacob Malinka,

COMPLAINANT

v.

M AND D Stewart LLC

License No. ROC 321618,

RESPONDENT

No. 2022A-10795-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 21, 2023

APPEARANCES: Complainant Jacob Malinka appeared on his own behalf. Respondent M AND D Steward LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

M AND D Stewart LLC (Respondent) is the holder of License No. 321618 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 5, 2021, Jacob Malinka (Complainant) entered into a contract with Respondent for new concrete floor overlay.

On or about November 26, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Albert Bernal. After a jobsite inspection, Investigator Bernal verified many of the issues identified in the complaint. Because Respondent’s license was suspended for non-renewal at the time, Investigator Bernal did not issue a written directive, but forwarded the matter to the legal department.

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 1:00 p.m. on April 21, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A March 28, 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 21, 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 Bernal testified that he substantiated nine of the ten items listed in the complaint. Investigator Bernal noted that the texture application was inconsistent throughout the home; voids, bubbles, and cracks were present in several areas; and different color material was visible in different areas. Investigator Bernal also verified overspray on kitchen cabinets

Complainant testified that he offered Respondent multiple opportunities to correct the defective work before filing the complaint and the work kept getting worse over the course of the last year and a half that they had lived in the home.

Administrative notice is taken of Respondent’s prior License record on May 8, 2023. Such prior License record reflects that Respondent’s License No. 321618 was first issued on September 5, 2018, and was suspended for non-renewal on September 22, 2022. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

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 espondent’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).

Respondent’s administratively suspended 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 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 suspend Respondent’s License No. 321618 for a period of five 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, 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

Albert Bernal

[email redacted]

M AND D Stewart LLC

[email redacted]

Jacob Malinka

[email redacted]

By: OAH Staff