ALJDEC - Licensing
2022A-11459-CHC-ROC · Registrar of Contractors · 2023-07-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Myrick,
COMPLAINANT
v.
Contracting By Benites Construction
Corporation
License No. ROC 202594,
RESPONDENT
No. 2022A-11459-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 12, 2023
APPEARANCES: Michael Myrick appeared on his own behalf. No one appeared on behalf of Respondent. Investigator Lisa Melton appeared on behalf of the Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
Contracting By Benites Construction Corporation (Respondent) is the holder of License No. 202594 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 7, 2022, Michael Myrick (Complainant) entered into a contract with Respondent for, among other things, the purchase and installation of an air condition unit. On the same date the contract was signed, Complainant paid the full contract price of $3,650.00, via check.
On or about December 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging no work had been performed.
The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton 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 March 24, 2023.
Compliance Item 1: The contractor changed the unit & size 5 days after contract. They were to install a new “Trane” roof mounted unit on 6/11/2022. for over 2 months they contractors no showed me on the installation. on july 28, 2022 @ 5:11pm A.C.U. representative shoed up with a a 2 year old used knock off unit. The representative claimed we ordered a scratch & dent unit and that we owe an additional $1,000.00 We refused the used unit and the HVAC contractor asked us to pay an extra $1,000.00 and take the used unit and they would install the very next day. After agreeing to this under duress and the need to get a new A/C unit we reluctantly agreed however they never showed to install. We have asked for a refund and we would all move on but they wont respond to us at all.
Investigator’s Observation: Respondent did not appear for this inspection. Subsequent to the inspection the Respondent provided a response to the allegations which is saved to the file. Complaint contains a copy of the work order and proof of payment (dated June 7, 2022). It appears that no work has been performed by the Respondent. Respondent shall complete project scope per original contract agreement/estimate, properly executed change orders, local building codes/permitting and manufacturer’s installation instructions.
Governing Rule:
A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. A.R.S. §32-1154 (A) (8), Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.
(All errors contained in original).
Following the issuance of the written directive, Respondent contacted Investigator Melton via email requesting a meeting with her supervisor. Investigator Melton advised Respondent if they failed to comply with the directive the complaint would be referred to the legal department for hearing and provided the contact information of her supervisor to Respondent. There are no indications Respondent contacted Investigator Melton’s supervisor. After the deadline in the directive expired, Investigator Melton was notified no work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1), Ariz. Rev. Stat. § 32-1154(A)(8), and Ariz. Rev. Stat. § 32-1154(A)(22).
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 June 12, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A May 11, 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 June 12, 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 Melton’s testimony was consistent with the information in the written directive, job site inspection notes, and Citation.
Complainant’s testimony was consistent with Investigator Melton’s testimony.
Respondent failed to appear and therefore did not provide any testimony.
Administrative notice is taken of Respondent’s License record on July 7, 2023. Such License record reflects that Respondent’s License No. 202594 was first issued on December 13, 2004, and is active. Such License record also reflects that there were two open complaints and one prior complaint resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in violation of Ariz. Rev. Stat. § 32-1154(A)(1) and Ariz. Rev. Stat. § 32-1154(A)(8).
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 Ariz. Rev. Stat. § 32-1154(A)(22).
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. 202594 for a period of 7 days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, July 3, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Michael Myrick
[email redacted]
David Benites
Contractive By Benites Construction Corporation
[email redacted]
By: OAH Staff