ALJDEC decisions subject to certification as final

2023A-00821-CHC-ROC · Registrar of Contractors · 2023-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Jamison,

COMPLAINANT

Elite Patio Covers & Gutters LLC

License No. ROC 340373,

RESPONDENT

No. 2023A-00821-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 15, 2023

APPEARANCES: Complainant Richard Jamison appeared on his own behalf. Elite Patio Covers & Gutters LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Elite Patio Covers & Gutters LLC (Respondent) is the holder of License No. 340373 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 26, 2021, Richard Jamison (Complainant) entered into a contract with Respondent for construction of a pergola in Complainant’s backyard. The contract did not the timing or amount of progress payments, nor the notice the property owner can file a written complaint for an alleged violation.

On or about January 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.

The Registrar assigned the complaint to Investigator Todd Anderson. After a jobsite inspection, Investigator Anderson 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 24, 2023.

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: Contractor required 1⁄2 down, that of which was paid to him on April 26, 2022. Contractor continually indicated permit was in process, but we later discovered he never submitted for one. Contractor left town and never started project. We've made several attempts to resolve, to date he has not returned any of our funds.

Investigator’s Observation: Observed no construction started of Pergola in backyard.

Governing Rule: ARS 32-1154(A)(1)

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The Written Directive From the Registrar, dated February 9, 2023 details violations of A.R.S. § 32-1154(A)(22) the citation issued March 15, 2023 only alleges violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(12).

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 15, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. An April 5, 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 15, 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 Anderson testified as to his observations of the project during the jobsite inspection and compliance jobsite inspections.

Complainant’s wife, Cindy Jamison, testified that on or about April 26, 2021, Mr. and Mrs. Jamison gave Respondent a check for $5,250.00. Respondent failed to start or perform any work on the project.

Complainant’s wife testified in her conversation with Respondent for status updates on the project she was told he planned to file for bankruptcy. Respondent informed Complainant’s wife he would not be returning their deposit as he does not have the money to return.

Administrative notice is taken of Respondent’s prior License record on May 31, 2023. Such prior License record reflects that Respondent’s License No. 340373 was first issued on August 24, 2022, and is active. 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 Respondent’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).

The evidence established that Respondent failed to complete any work for which it was contracted and paid. Therefore, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 340373.

In the alternative, should the Registrar suspend instead of revoke it is recommended Respondent’s License No. 340373 be suspended for (30) days.

It is further recommended, should the Registrar suspend instead of revoke, 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 A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 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 1, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Martín Quezada

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Richard Jamison

[email redacted]

Elite Patio Covers & Gutters LLC

Email [email redacted]

Todd Anderson

[email redacted]

By: OAH Staff