ALJDEC - Licensing

2023A-01701-CHC-ROC · Registrar of Contractors · 2023-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Owen Nolton,

COMPLAINANT

v.

M & M Diversified LLC

License No. ROC 288011,

RESPONDENT

No. 2023A-01701-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 9, 2023

APPEARANCES: Complainant John Owen Nolton appeared on his own behalf. Sean Mendoza, Owner and Qualifying Party, appeared on behalf of Respondent M & M Diversified LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

M & M Diversified LLC (Respondent) is the holder of License No. 288011 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 17, 2022, John Owen Nolton (Complainant) entered into a contract with Respondent for the removal and replacement of the siding on his home. The contract did not include the estimated date of completion or an advisement that the homeowner had the right to file a complaint with the Registrar.

On or about February 9, 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 Michael Springer. After a jobsite inspection on March 15, 2023, 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 March 31st, 2023.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Damage to inside of house by pounding on outside

Investigator’s Observation: There is drywall damage around the two windows on the wall that was worked on. Nail pops and tile knocked down in the shower only on the wall the Respondent worked on. Respondent stated they were beating on the wall to remove materials on the outside to prepare for new siding.

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.

Compliance Item: 2 - Paint peeling off 30 days after job was done

Investigator’s Observation: Paint is peeling off new siding. West Wall.

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.

Compliance Item: 3 - Wrong type of siding was used on outside of house

Investigator’s Observation: In researching the products page for Arauco Shiplap siding. It states the product is for indoor use only.

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.

Following the issuance of the written directive, Respondent attempted to reach a financial settlement with Complainant as Respondent’s license was suspended and it could not perform any work on the project. After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed and the parties were unable to reach a financial settlement.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Springer testified as to the Registrar’s involvement in this matter. Specifically, Investigator Springer reviewed his findings at the jobsite inspection and the issuance of the written directive. Investigator Springer also noted that Respondent’s contract lacked all the required elements pursuant to statute.

Complainant testified that the work performed on his home was defective and he filed the complaint as a result.

Mr. Mendoza acknowledged that Respondent used the wrong type of siding on the project. Mr. Mendoza indicated that he attempted to reach a financial settlement with Complainant because Respondent’s license was suspended and he was unable to perform any corrective work.

Administrative notice is taken of Respondent’s prior License record on June 29, 2023. Such prior License record reflects that Respondent’s License No. 288011 was first issued on January 3, 2014, and was suspended on September 6, 2022, due to a payout from the recovery fund. Such prior License record also reflects that there were no other open complaints and one prior complaint against Respondent’s license that resulted in discipline.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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’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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

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).

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 A.R.S. § 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. 288011 for a period of three days.

It is further recommended that, 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.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 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, June 29, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

John Owen Nolton

[email redacted]

Mike Springer

[email redacted]

M & M Diversified LLC

[email redacted]

By: OAH Staff