ALJDEC decisions subject to certification as final

2023A-00082-CHC-ROC · Registrar of Contractors · 2023-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebeccca Hillebrand ,

COMPLAINANT

DMR Carpentry LLC

License No. ROC 334709,

RESPONDENT

No. 2023A-00082-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 16, 2023

APPEARANCES: Rebecca Hillebrand Complainant. No representative from Respondent appeared.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

DMR Carpentry LLC (Respondent) is the holder of License No. 334709 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 4, 2022, Rebecca Hillebrand (Complainant) entered into a contract with Respondent for, among other things, replacement of the entire roof. The contract did not include the dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract, writing which indicates the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.. The contract did not contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

On or about February 3, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. On January 31, 2023, after a jobsite inspection, Investigator Springer 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 February 16th, 2023.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Work is not finished; Area between back porch and main roof is open and allows rain to get in; He keeps giving excuses for not working which are not the truth i.e., "it rained today" but it did not rain today at our home. the shingles are not finished, and some came off with the last storm so I am worried rain will start coming into the house.

Investigator’s Observation: Respondent has attempted corrections prior to the inspection, However there is still a leak in the laundry room. A vent from the water heater was pointed out to me as being loose, but I cannot very the Respondent caused this.

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.

On February 1, 2023, Investigator Springer issued an Amended Written Directive in which he indicated that the vent from the furnace was loose and changed the deadline for compliance to February 17, 2023.

After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed. Respondent alleged some corrective work was performed prior to inspection, however, there is no evidence of any such corrective work.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; 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 9:00 a.m. on May 16, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

An April 19, 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 May 16, 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 Springer testified Respondent attempted corrections prior to jobsite inspection, however, notwithstanding the attempted corrections the leak in the laundry room remained.

Complainant testified work began on her roof sometime around November 29, 2022 and stopped sometime around December 21, 2022. Respondent told Complainant the work was completed, but Complainant noticed a leak in the roof in the laundry room after rain. Complainant contacted Respondent regarding the leak. According to Complainant, Respondent claimed to have completed corrective work; however, following the repair Complainant noticed additional water leaking from the roof in the laundry room after rain. Again, Complainant reached out to Respondent, but Respondent never again contacted Complainant.

Respondent did not testify as their representative failed to appear at the hearing.

Administrative notice is taken of Respondent’s License record on June 5, 2023. Such License record reflects that Respondent’s License No. 334709 was first issued on September 3, 2021, and is active. Such License record also reflects that there are two open complaints and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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.

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’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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

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).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

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. 334709 for a period of 48 hours.

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.

It is further recommended, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

-54864001

001

-137160-45720000Done this day, June 5, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Rebeccca Hillebrand

[email redacted]

Mike Springer

[email redacted]

DMR Carpentry LLC

[email redacted]

By: OAH Staff