ALJDEC - Licensing
2023A-00365-CHC-ROC · Registrar of Contractors · 2023-07-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ben Allen ,
COMPLAINANT
v.
Desert Horizon Plastering LLC
License No. ROC 318367,
RESPONDENT
No. 2023A-00365-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 19, 2023, 1:00 P.M.
APPEARANCES: Complainant Ben Allen appeared on his own behalf; Damon Dalgleish, member, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Desert Horizon Plastering, LLC (Respondent), is the holder of License Number 318367 issued by the Registrar of Contractors (Registrar).
2. On or about January 31, 2023, Ben Allen (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with stucco work by Respondent at a residence in Queen Creek, Arizona (“project”).
3. The Registrar performed an inspection of the project on February 21, 2023. Thereafter, the Registrar issued a Directive, dated March 8, 2023, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 27 29, 2023 (“Directive deadline”), as follows:
Compliance Item: 1- Trade Partner has been slow and sporadic in completing
agreed upon work. Not showing up when scheduled. Not sending enough man power.
Not returning calls and or emails. Project is left in an uncompleted state. We are not
able to move forward with exterior of home because we cannot pass required
inspections. We supplied Foam Material and Tyvek Material. Project cannot pass
required inspections to move forward and be completed.
Investigator’s Observation: At the time of Job Site Inspection I observed yellow
colored foam at South facing exterior of residence lathing. This included areas with
loose/missing wire lathing, lack of staple fasteners and missing wire lath at weep
screed and some missing foam.
Complainant provided failed lathing inspection documentation, and it appears that the project has not moved forward since initial adverse action notification and Job
Site Inspection. Respondent shall correct by the appropriate means that will pass
inspection by the Authority having Jurisdiction.
Governing Rule: 1-Workmanship Rule: ARS §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.
2-Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not
performed in accordance with professional industry standards.
4. Thereafter, after being informed that Respondent had not progressed with the work, the Registrar then issued a Citation to Respondent, dated April 4, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without a valid justification).
5. The Registrar issued a Notice of Hearing, dated May 9, 2023, that set a hearing for June 19, 2023, at 1:00 P.M.
6. At the June 19, 2023 hearing, Complainant testified on his own behalf; Respondent presented the testimony of Damon Dalgleish. Robert Di Alto, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his job inspection notes and the photographs he took. He testified he had no contact with Respondent once the Directive was issued.
8. As herein relevant to the Citation, Complainant Ben Allen testified that he was building the home on his own that was unrelated to his employer. He indicated the individual with whom he dealt is apparently no longer with the company. He testified that Respondent simply did not finish the work which required him to find another contractor.
9. As herein relevant to the Citation, Damon Dalgleish, member of Respondent, testified on behalf of Respondent that he had no involvement with the project, is a silent partner, and had no first-hand knowledge of the dispute. He stated that he had heard that Complainant’s employer was withholding payments to Respondent and therefore Respondent did not have staff or funds to complete Complainant’s project.
10. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on March 8, 2018. The site also reflects three open cases and no previous disciplined cases.
.
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. 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 acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
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5. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no dispute that Respondent did not complete the project and there was no evidence presented of a valid legal excuse for failing to do so.
6. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. Respondent’s assertion that it did not have the resources to complete the job, whether related to Complainant’s employer or otherwise, is not a valid justification for not performing corrective work.
7. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Desert Horizon Plastering, LLC’s, License Number 318367 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the 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 10, 2023
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Desert Horizon Plastering, LLC
8429 W. Devonshire Ave.
Phoenix, AZ 85037
[email redacted]
[email redacted]
Ben Allen
[email redacted]
by: OAH staff