ALJDEC - Licensing
2023A-00611-CHC-ROC · Registrar of Contractors · 2023-08-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Janna L Vanderpool ,
COMPLAINANT
v.
Mayer & Sons LLC
License No. ROC 285811,
RESPONDENT
No. 2023A-00611-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 25, 2023, 1:00 P.M.
APPEARANCES: Complainant Janna L. Vanderpool appeared on her own behalf. No appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Mayer & Sons. LLC (Respondent), is the holder of License Number 285811 issued by the Registrar of Contractors (Registrar).
2. On or January 11, 2023, Janna L. Vanderpool (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment, poor work, and failure to complete repairs in connection with deck work by Respondent at a residence in Gold Canyon, Arizona (“project”). The Complaint reflected a contract amount of $50,500.00.
3. The Registrar performed an inspection of the project on March 15, 2023. Thereafter, the Registrar issued a Directive, dated March 30, 2023, directing Respondent to remedy the following violations by April 17. 2023, by appropriate means:
Complaint Item 3: “Concrete areas of porch were retaining wall standing water.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: “Poor engineering to deck causing more leaks.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Observed multiple leaks under porch. Respondent should fix by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 8: “After agreeing in writing in Nov 2022 JG began repairs on Nov 21, 2022 but has since abandoned repairs before completion.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Porch is currently not completed. Respondent should complete by appropriate means.
Governing Rule: 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.
Complaint Item 9: “JG installed new support Nov, 2022 appears to have corrected the sagging deck. But still remains unpainted and unsealed.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 11: “Safety railing for the deck removed and not reinstalled. Left on roof. ”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
Governing Rule: 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.
Complaint Item 12: “Large amount of debris was left onsite.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should remove by appropriate means.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 14: “While trying to perfect this complaint, the deck where it adjoins the stucco side of the house is gapping between plywood and stucco.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
4. After Complainant informed the Registrar that Respondent had not taken any corrective action, the Registrar then issued a Citation to Respondent, dated May 11, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(8) (failure in a material respect to complete a construction project or operation for the price stated in the contract):
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
d. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of the license;
e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated June 6, 2023, that set a hearing for July 25, 2023, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about June 6, 2023, at its address of record.
6. At the July 25, 2023, hearing, Complainant Janna L. Vanderpool testified on her own behalf. Jason Simpson, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, member, manager, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to dispute disciplinary action being imposed against its license.
8. The Investigator testified on behalf of the Registrar consistently with his job inspection notes and the photographs he took. He testified as to the Directive items and that Complainant advised him that none of the items were corrected. He further testified that the contract price exceeded $1,000.00 but was missing the estimated completion date and the notice of rights to file a complaint to the Registrar. He also stated that Respondent had a CR7 license but contracted to have concrete and stucco work performed which was beyond the scope of its license.
9. Complainant Janna L. Vanderpool testified as to a chronology of Respondent’s work and that no corrective work was performed after the issuance of the Directive. She stated that after the project was completed for which she fully paid, the deck started leaking and Respondent did a temporary fix but the leaking got worse. She further stated the deck was sagging due to no support beam, and that Respondent came back to add a support beam. To do so, she said Respondent ripped up the decking and took off railings, shingles, and coating without replacing them and then demanded further payment of $2,500.00. She stated that when she refused payment of that amount over the contract amount, Respondent never returned to the project.
10. Administrative notice is taken of Respondent’s prior license record as of today’s date Such prior license record reflects that Respondent’s License No. 285811 was first issued on June 26, 2013, renewed through June 30, 2023, and currently suspended due to non-renewal. Such prior license record also reflects this case as its only open case, one disciplined case, and no resolved/settled cases in the past. In that disciplined case (Case No. 2021A-04957-CHC-ROC), Respondent was disciplined for six days for violations of A.R.S. §§ 32-1154(A)(2)(a), 32-1154(A)(3), and 32-1154(A)(22), with a fine of $250.00 imposed,
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. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. 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:
...
3. Violation of any rule adopted by the registrar.
...
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.
...
12. Failure in any material respect to comply with this chapter.
...
16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
...
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.....
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
7. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. 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.
9. That 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 shall 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. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a). No evidence was presented to dispute existence of any of the Directive items.
9. A.R.S. § 32-1154(A)(8). Complainant has presented sufficient evidence to establish that Respondent failed in a material respect to complete the project for the price stated in the contract. Although the evidence reflected that Respondent initially completed the project for the contract price, it also reflected that during the course of pre-Complaint corrective work, Respondent essentially tore everything apart by removing the railing, a top layer of shingles, and the protective coating and refused to replace these items without payment of a sum above the contract price. The Tribunal considers these acts to constitute a failure to complete the project for a price stated in the contract.
10. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the written contract and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(12). The evidence presented reflected the written contract had a value of over $1,000.00 and was lacking the estimated completion date and the notice to property owner to file a written complaint with the Registrar.
11 A.R.S. § 32-1154(A)(16). Complainant has not presented sufficient evidence to demonstrate that Respondent knowingly contracted beyond the scope of its license and consequently Respondent should not be disciplined for a violation of A.R.S. § 32-1154(A)(16). The evidence reflected that Respondent had a CR7 license for carpentry but hired subcontractors for concrete and stucco work. While these types of work may be beyond the scope of Respondent’s license, no evidence was presented to show that Respondent “knowingly” contracted beyond the scope at the time the work was performed.
12. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There was no dispute that Respondent failed to perform corrective work after the Directive was issued and there was no evidence presented of a valid justification for failing to do so.
13. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to established cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(3), § 32-1154(A)(8), § 32-1154(A)(12), 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, Mayer & Sons. LLC’s, License Number 285811 ten for ten (10) days.
IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.
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, August 14, 2023.
/s/ Roger Geddes
Administrative Law Judge
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Mayer & Sons LLC
[email redacted]
Janna L Vanderpool
[email redacted]
By: OAH Staff