ALJDEC - Licensing
2023A-01798-CHC-ROC · Registrar of Contractors · 2023-07-18
gIN THE OFFICE OF ADMINISTRATIVE HEARINGS
Moses Robert Rodriguez ,
COMPLAINANT
v.
Pro-Tec Contracting LLC
License No. ROC 326962,
RESPONDENT
No. 2023A-01798-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 28, 2023, 9:00 A.M.
APPEARANCES: Complainant Moses Robert Rodriguez appeared on his own behalf; Ruben Brasher, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Pro-Tec Contracting, LLC, is the holder of License Number 326962 issued by the Registrar of Contractors (Registrar).
2. On or about February 13, 2023, Moses Robert Rodriguez (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with roofing work performed by Respondent at a residence in Glendale, Arizona (“project”).
3. The Registrar performed an inspection of the project on March 13, 2023. Thereafter, the Registrar issued a Directive, dated March 24, 2023, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 17, 2023 (“Directive deadline”), as follows:
Compliance Item: 3 – Contract wasn’t completed.
Investigator’s Observation: There was a few items that need to be completed. There are some boards on the back patio that were not replaced and do appear to be addressed.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 5 – Abandoned vent was not removed.
Investigator’s Observation: A vent was supposed to have been removed at the beginning of the job and did not get completed.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
4. After being informed that corrective work had not been completed, the Registrar then issued a Citation to Respondent, dated April 25, 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)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, and issued a Notice of Hearing for June 28, 2023, at 9:00 A.M.
6. At the June 28, 2023, hearing, Complainant Moses Robert Rodriguez testified on his own behalf. Ruben Brasher testified on behalf of Respondent. Chris Fultz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s exhibit numbers 1 - 2 submitted on June 21, 2023; Complainant did not submit any exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he explained to Complainant why certain items complained of were not required to be corrected. He stated further that Respondent informed him that it was denied access to the property on April 21, 2023, after the expiration of the Directive deadline.
8. Complainant Moses Robert Rodriguez testified on his own behalf, as herein relevant to the Citation, that Respondent’s subcontractor came to the residence on April 21, 2023, at about 8:30 A.M. when they were supposed to arrive at 5:00 P.M. He stated he was not home so asked them via his doorbell to leave his property because he had wanted to be present during the corrective work. He said there were two appointments prior to that but Respondent did not show up for either. He further testified the abandoned vent had been removed by Respondent.
9. Ruben Brasher testified on behalf of Respondent, as herein relevant to the Citation, that he sent a subcontractor on April 21, 2023, as agreed to by Complainant to do the corrective work. He stated that after performing some work, including removing the abandoned vent, the subcontractor rang Complainant’s doorbell to inquire as to which boards needed to be replaced. He further testified that Complainant through his video doorbell advised him that he was not presently at home, that the subcontractor was supposed to have been there later in the day when Complainant could be present, and that the subcontractor should leave the property, which the subcontractor did. He also testified of the efforts to schedule corrective work before and after the April 21, 2023, attempt, referencing the telephone records submitted reflecting calls to and from Complainant.
10. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on November 25, 2019, that there are two open cases, and no disciplined or resolved/settled 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 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, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
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.....
5. 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,...”
6. 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 in violation of Arizona Administrative Code Rule 4-9-108(a). Respondent did not dispute the existence of the only uncorrected Directive item, Compliance Item No. 3, regarding the replacement of boards.
7. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification. Consequently, Respondent should not be disciplined for a violation of A.R.S. § 32-1154(A)(22).
The evidence reflected that Respondent made reasonable efforts to perform corrective work after the Directive was issued and that the lack of access was a valid justification for not completing the corrective work. Telephone records reflect telephone calls to and from Complainant on April 7, 10, 15, and 17th. When Respondent’s subcontractor came to the property to perform the corrective work on April 21 after the Directive deadline as agreed to by Complainant and indeed started to perform such work, Complainant asked him to leave because the subcontractor had come early and Complainant had wanted to be present during the corrective work. Complainant refused to allow any additional access. While Complainant certainly had a right to be present when corrective work was performed, after such an attempt at and after the commencement of corrective work by Respondent, the Tribunal considers it unreasonable for Complainant to deny Respondent further access to the property to allow the completion of the corrective work. Further, while allowing access is generally not required after the Directive deadline, once Complainant agreed to allow access after the Directive deadline, further access after the deadline should have been permitted to complete the work.
8. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(3), because a valid justification has been shown for Respondent not completing the corrective work, Complainant has failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, that the Citation and the Complaint in this matter be dismissed.
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 18, 2023.
/s/ Roger Geddes
Administrative Law Judge
Martín Quezada
Director
Registrar of Contractors
[email redacted]
Moses Robert Rodriguez
[email redacted]
Pro-Tec Contracting LLC
[email redacted]
By: OAH staff