ALJDEC decisions subject to certification as final

2023A-03491-RFA-LS-ROC · Registrar of Contractors · 2025-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Barrett Beaston,

COMPLAINANT,

Avante Construction LLC

License No. ROC 317877,

RESPONDENT.

No. 2023A-03491-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2025 at 1:00pm and April 9, 2025 at 9:30am

APPEARANCES: Jason Barrett Beaston, Complainant. Arizona Assistant Attorney General Charles Hover III on behalf of the Registrar of Contractors with Lauren Johnston as witness. No appearance on behalf of Avante Construction LLC, Respondent.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: State’s Exhibits 1 through 8. Complainant’s Exhibits.

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar”) issued License No. ROC 317877 to Respondent which was first issued on February 22, 2018.

On or about March 20, 2023, the Registrar received a Complaint against Avante Construction LLC (“Respondent”) from Jason Barrett Beaston (“Complainant”) alleging, among other things, poor work (“the workmanship complaint”).

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely of Ariz. Admin. Code R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held on December 7, 2023. In the Decision, Administrative Law Judge Stone considered Respondent’s arguments and concluded, among other things, that “the Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3). . . and failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A) (22).”

On January 16, 2024, the Registrar issued a Final Administrative Decision and Order finding the violations and ordering Respondent to pay a $500.00 civil penalty.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of completing or repairing the project. As part of the claim process, Complainant submitted bids from roof, electrical, plumbing, and painting contractors that Complainant had received to correct the project.

Complainant provided in his Recovery Fund application that the monies already spent to repair and/or complete the project totaled $68,319.78. Complainant requested to receive $30,000.00 from the Fund. In addition, Complainant provided in this application that work started by the original contractor in “approximately July 2021.”

Complainant provided to the Registrar a copy of a contract between Respondent and Oak Street Properties LLC (“Oak Street”) which was typewritten, however, there was a date of “06/12/21” that was handwritten next to scribbled in additions that were handwritten.

On February 7, 2025, the Registrar issued a Notice and Order of Recovery Fund Ineligibility, finding that “Complainant is ineligible to recover from the Fund because he has failed to satisfy the eligibility criteria. [Respondent’s] ROC License No. 317877, was not in good standing at all relevant times. A.R.S. § 32-1132(C). Documentation submitted by the Complainant shows that at the time(s), pursuant to the statute, [Respondent] did not hold an active or in good standing license.”

There was no Notice of Claim for Administrative Payout completed by the Registrar in this matter.

On February 27, 2025, the Registrar referred the matter to the Office of Administrative Hearings for an evidentiary hearing.

A hearing was held on April 4, 2025 and April 9, 2025.

Hearing Evidence

On February 22, 2018, Respondent’s License No. ROC 317877 was first issued. Respondent’s qualifying party was listed as Carlos Antonio Dominguez, Jr. with a General Dual KB-2 Dual Residential and Small Commercial license.

On July 20, 2020, the City of Phoenix issued a Building Permit for a new custom home at 1303 East Campbell Avenue, Phoenix, Arizona 85014 (“listed property”). The owner was listed as Oak Street and the contractor was listed as Avante Construction LLC as permit # RSF 20028434.

In the City of Phoenix’s Permit Inspection History (“PIH”), under the “Discipline” category “General” refers to the General Contractor listed on Permit No. RSF 20028434 for the listed property which is Respondent. A few of the entries in this PIH included as follows:

INSPECTION

DISCIPLINE

INSPECTOR

SCHEDULE DATE

RESULTS

COMPLETION DATE

622 – Soil, Sewer, Water

General

8/21/2020

Not Ready

8/21/2020

622 – Soil, Sewer, Water

General

8/26/2020

Fail

8/26/2020

615 – Footing

General

10/9/2020

Fail

10/9/2020

615 – Footing

General

10/12/2020

Not Ready

10/12/2020

621 – Foundation

General

10/12/2020

Cond/Pass

10/13/2020

620 – Pre Slab

General

10/21/2020

Fail

10/21/2020

620 – Pre Slab

General

10/23/2020

Pass

10/23/2020

630 – Framing

General

4/26/2021

Fail

4/27/2021

On December 16, 2020, Mr. Dominguez inactivated License No ROC 317877 and paid a $50.00 fee through the Registrar.

On February 3, 2021, Mr. Dominguez canceled License No ROC 317877 through the Registrar. Ms. Lauren Johnston, Legal Assistant II, testified on behalf of the Registrar that the effective date of the cancellation was February 16, 2021.

On April 29, 2021, on the PIH, a note from Inspector Brian Hughes stated “osb still not nailed off and new soils is roughed in wrong – left tag and text message contr. – Carlos – to get another plumber that knows the code to correct ALL mistakes.”

On December 14, 2022, a Certificate of Occupancy (“COO”) was issued by the City of Phoenix and mailed to Respondent and owner Oak Street for the listed property with building permit RSF 20028434.

On January 25, 2023, Mr. Dominguez on behalf of Avante Construction LLC signed as a Warrantor on a Warranty of Completion of Construction form by the United States Department of Housing and Urban Development (“U.S. HUD”) with Complainant as the purchaser at the listed property.

On January 27, 2023, Complainant closed escrow on the listed property. In February 2023, Complainant met with Mr. Dominguez and went over workmanship issues that occurred at the listed property.

In May and June 2023, Complainant worked with the Department of Veterans Affairs for Respondent to honor the homeowner’s warranty. On November 1, 2023, Complainant had a third-party company perform an inspection at the listed property. In December 2023, Complainant testified that he finally filed a complaint with the Registrar against Respondent because these issues were not being resolved.

In the Notice and Order of Recovery Fund Ineligibility, Ms. Johnston held that, pursuant to Ariz. Rev. Stat. § 32-1132(C), to be eligible for an award from the Fund, the contractor whose actions damaged the claimant must have been appropriately licensed at least one of the following times: 1) The date that the underlying contract was signed, 2) The date that the first payment was made, or 3) The date that the underlying work first commenced. Ms. Johnston could not find one of those times where the license was active. Ms. Johnston testified in regards to the permit, “Anyone can pull a permit at any time. That doesn’t mean that work is necessarily started because a permit is pulled.” Ms. Johnston further argued “[Respondent] was on the permit but that’s not enough proof to show that [Respondent] built this home.” Ms. Johnston acknowledged that she saw the name “Carlos” throughout the PIH and testified that “[t]here are four Carlos Dominguez that have active contractor licenses right now.”

At one point, Complainant asked Ms. Johnston a question regarding the written directive in his workmanship matter, as followed, “Why would you issue a directive to Carlos Dominguez of Avante Construction to do the repair work on a house he did not build?” Ms. Johnston testified, “I cannot speak to that as I did not do that.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 32-1132(A) provides as follows:

The residential contractors’ recovery fund is established to be administered by the Registrar for the benefit of claimants that are damaged by an act, representation, transaction or conduct of a residential contractor that is licensed pursuant to this chapter and that is in violation of this chapter or the rules adopted pursuant to this chapter.

Ariz. Rev. Stat. § 32-1132(B)(1) provides as follows:

Only the following claimants are eligible for an award from the residential contractors’ recover fund: (1) An individual who both:

Owns residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance.

Actually occupies or intends to occupy the residential real property described in subdivision (a) of this paragraph as the individual’s primary residence.

Ariz. Rev. Stat. § 32-1132(C) provides as follows:

In order for a claimant to be eligible for an award from the residential contractors’ recovery fund, the contractor whose actions damaged the claimant must have been appropriately licensed at one of the following times:

The date that the underlying contract was signed.

The date that the first payment was made.

The date that the underlying work first commenced.

Ariz. Rev. Stat. § 32-1132(D) provides as follows:

For the purposes of this section, “appropriately licensed” means the residential contractor held a valid residential contractor license that was issued pursuant to this chapter and that was not canceled, in inactive status, expired, suspended or revoked.

Complainant bears the burden of proof because he is asserting a claim, right, or entitlement by a preponderance of the evidence.

A preponderance of the evidence means “proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

In this case, Complainant owned residential real property that was damaged by the failure of a residential contractor to adequately improve his residential structure and Complainant owned the listed property as his primary residence per Ariz. Rev. Stat. § 32-1132(B)(1).

Per Ariz. Rev. Stat. § 32-1132(D), Complainant did not have evidence to show when the underlying contract between Respondent and Oak Street was formed. Nor was Complainant able to provide evidence on when the first payment between Respondent and Oak Street occurred. However, the record established that Respondent was appropriately licensed from February 22, 2018, when License No. ROC 317877 was first issued and valid through December 15, 2020, before Mr. Dominguez inactivated the license on December 16, 2020.

To determine whether Complainant met the requirements of Ariz. Rev. Stat. § 32-1132(C), any evidence of when the underlying work first commenced at the listed property would need to be prior to December 16, 2020. Complainant clearly established that the permit issued on July 20, 2020, by the City of Phoenix with permit #RSF 20028434 between Respondent and Oak Street was valid, legitimate, and could be accessed by going to the City of Phoenix website. Furthermore, the PIH directly linked up with the permit through #RSF 20028434 and all of the work that was being inspected by the City of Phoenix prior to December 16, 2020.

At the hearing, Ms. Johnston insinuated that there was something nefarious going on with Complainant’s exhibits and that the permit did not provide “enough proof to show that [Respondent] built this home,” and mentioned that there were “four [other] Carlos Dominguez’s with active Registrar licenses.” The Administrative Law Judge is perplexed with these outlandish accusations that were not brought up in the Notice and Order of Recovery Fund Ineligibility. In addition, if this Mr. Dominguez was not the same individual attached to Avante Construction LLC, then the Registrar failed to explain why it moved forward with disciplinary action against this very same contractor in the workmanship case in 2023A-03491.

After review of all the evidence, the Tribunal concludes that the Registrar improperly found Complainant ineligible. Complainant’s claim to the Fund should be reviewed by the Registrar to determine actual damages and recommend a payout award from the Fund to Complainant.

RECOMMENDED ORDER

Based on the foregoing,

It is Recommended that on the effective date of the Registrar’s final order, the Registrar should review Complainant’s claim to the Fund to determine Complainant’s actual damages and recommend a payout from the Fund.

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, April 29, 2025.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Jason Barrett Beaston

1303 E Campbell Ave

Phoenix, AZ 85014

[email redacted]

Avante Construction LLC

2865 N 63rd St

Mesa, AZ 85215

[email redacted]

Charles S. Hover, III

2005 N Central Ave

Phoenix, AZ 85004-1592

[email redacted]

By: OAH Staff