ALJDEC - Licensing

2023A-02473-CHC-ROC · Registrar of Contractors · 2023-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carlos Matamoros,

COMPLAINANT,

v.

Pro-Tec Contracting LLC

ROC License No. 326962,

RESPONDENT.

No. 2023A-02473-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 24, 2023 at 9:00 AM.

APPEARANCES: Rodrigo Matamoros appeared on behalf of Carlos Matamoros (“Complainant”). Chris Fultz appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Ruben Brascher appeared on behalf of Pro-Tec Contracting LLC (“Respondent”). Complainant observed

ADMINISTRATIVE LAW JUDGE: Jenna Clark

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On November 25, 2019, the Registrar issued License No. 326962 General Dual KB-1 Building contracting license to Respondent. The license is renewed through November 30, 2023. James O’Brien III is listed as the Qualifying Party and Member on the license. Ruben Brasher is also listed on the license as a Member. Respondent’s address of record for the license is 8611 N. Black Canyon Hwy. Ste. 114 Phoenix, AZ 85021. Respondent has an active $14,000.00 surety bond on the license issued by American Contractors Indemnity Company. The license no prior disciplinary record. There are two (1) open complaints listed against the license; one of which is presumed to be related to this matter.

On February 24, 2023, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 326962 alleging abandonment and poor work of their residential insurance remediation project. The Registrar designated it Complaint No. 2023-02473 and assigned to Chris Fultz (“Investigator Fultz”) for investigation.

On March 10, 2023, Investigator Fultz issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on April 10, 2023, at 10:00 a.m. Correspondence was not returned as undeliverable to Respondent.

On April 10, 2023, Investigator Fultz inspected the work that had been performed on the project to date. Respondent was not present. Investigator Fultz also reviewed the contract-related correspondence between the parties, and took 4 photographs of the project site. When he was finished, Investigator Fultz drafted his Inspection Notes. Ultimately, Investigator Fultz derived three (3) separate and distinct complaint items from Complainant’s narrative submission to the Registrar, of which, he substantiated 1 based on his firsthand observations. Specifically, Investigator Fultz determined Respondent’s workmanship on complaint item 3 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.

On April 21, 2023, Investigator Fultz issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on May 12, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.

On May 15, 2023, Investigator Fultz forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On May 17, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until June 01, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.

On May 29, 2023, the Registrar received Respondent’s timely Answer whereby Respondent argued that it professionally completed the roofing portion of the project, but terminated the interior portion of the project because Complainant had been “very difficult” to work with. Per Respondent, Complainant was refunded monies Respondent received from his insurance company for the interior portion of the home, but refused and returned it to Respondent with a demand that the entire project be completed.

On May 30, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 24, 2023. Per the May 31, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant called Rodrigo Matamoros and investigator Fultz as witnesses. Respondent called Ruben Brascher as a witness. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns a three-story residential property located at 8758 W. Ocotillo Rd. Glendale, AZ 85305. On or about July 17, 2022, Complainant’s property sustained heavy damage due to a windstorm and hail. Specifically, Complainant’s roof sustained damaged, which in turn caused leaks and subsequent damage to the interior hallway under the roof.

On or about September 22, 2022, Complainant, by and through his son Rodrigo Matamoros, entered into a roofing and interior contract with Respondent to repair Complainant’s residence. Complainant paid Respondent a $500.00 deductible, and all other payments were made directly to Respondent by Complainant’s homeowner’s insurance, Allstate.

Work on the project commenced on or about October 01, 2022, and stopped or was otherwise completed on or about November 02, 2022.

Complainant filed Complaint No. 2023-02473, in large part, because Respondent damaged polyvinyl chloride (“PVC”) pipes during its remediation of Complainant’s roof and initially denied doing so until Complainant was able to provide proof via Google Earth imagery. The parties relationship deteriorated shortly thereafter, culminating in Respondent’s cancellation of the remainder of the contract after it finished Complainant’s roof.

Respondent did not perform any corrective work on the project between April 21, 2023, and May 12, 2023. Nor did any other appropriately licensed contractor on Respondent’s behalf.

On or about May 09, 2023, Respondent issued Complainant a check for $313.50 to purportedly cover the costs of interior hallway repairs, which Complainant returned to Respondent days later.

Closing Arguments

Both Complainant and Respondent declined to provide a closing arguments.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

The material facts in the case at bar are clear.

It is clear that the parties had a roofing and minor interior remediation construction contract that Complainant tendered the deposit for in full. It is also clear that Respondent received payment(s) from Allstate for the balance owed on the contract. It is also clear that some of Respondent’s workmanship on the project did not satisfy the Registrar’s minimum standards. It is further clear that Respondent did not attempt to comply with the Registrar’s Directive, and that the parties did not settle their dispute.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and timely complete Complainant’s remediation project. This is an affirmative defense that Respondent bears the burden to establish. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence. Here, a detailed analysis is not necessary because Mr. Brascher admitted that Respondent made no attempts to perform corrective work during the Directive’s compliance period, or ask the Registrar for an extension of time. As no good cause was established for Respondent’s inaction, Respondent’s conduct is a factor in aggravation. Because there is no evidence in the record that excuses or otherwise justifies Respondent’s lack of performance on this project, Respondent has failed to sustain his burden of persuasion in this matter.

Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense in this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Pro-Tec Contracting LLC, ROC License No. 326962, be suspended for two (2) days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $100.00 (one hundred dollars) in certified funds as a civil penalty in this matter.

IT IS FURTHER RECOMMENDED no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A), unless Respondent tenders payment of any outstanding prior civil penalty.

NOTICE

Pursuant to Ariz. Rev. Stat. § 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 01, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Carlos Matamoros, Complainant

8758 W. Ocotillo Rd.

Glendale, AZ 85305

[email redacted]

Pro-Tec Contracting LLC, Respondent

8611 N. Black Canyon Hwy., Ste. 114

Phoenix, AZ 85021

[email redacted]

By: OAH Staff