ALJDEC - Licensing
2023A-03611-CHC-ROC · Registrar of Contractors · 2024-07-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Evelyn Hargis,
COMPLAINANT,
v.
Jasent Montano LLC
License No. ROC 318143,
RESPONDENT.
No. 2023A-03611-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on July 16, 2024.
APPEARANCES:
For Complainant: Evelyn Hargis.
For Respondent: No appearance.
For the Registrar of Contractors: Investigator Christopher Allison.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant entered Exhibits 1 A through 7 A, B
_____________________________________________________________________
FINDINGS OF FACT
Jasent Montano LLC (Respondent) was the holder of License No. 318143 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 26, 2020, Evelyn Hargis (Complainant) entered into a contract with Respondent for, among other things, construction of a new home and project management services.
On or about March 27, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Christopher Allison, who issued a Jobsite Inspection Notice on April 6, 2023, scheduling the inspection for April 27, 2023.
Investigator Allison conducted the jobsite inspection on April 27, 2023, and Respondent was not present due to a recent knee surgery.
Investigator Allison issued a Written Directive From the Registrar to Respondent on May 23, 2023, requiring notification of compliance by June 9, 2023. However due to a miscommunication, the Directive was incomplete.
Investigator Allison issued a second Jobsite Inspection Notice on May 30, 2023, scheduling another inspection for June 13, 2023.
After the second inspection, Investigator Allison revised his findings on items 6, 7, and 9. A second Written Directive From the Registrar to Respondent was issued on June 27, 2023, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 6 - Several unsealed edges in the siding; siding to roof contact has already resulted in damage
Investigator’s Observation: There were several unsealed edges of siding.
Respondent shall correct in accordance to manufactures specifications.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 7 - Gaps around wall protrusions
Investigator’s Observation: There are several gaps and exposed wall sheathing.
Respondent shall correct in an appropriate manner.
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: 9 - Window ledges are not sloped; water accumulates
Investigator’s Observation: The window ledges are not sloped to allow water runoff.
LP Trim is not suitable for sills per manufacture. The complainant has provided documentation showing this concern was brought to the Respondent's attention prior to painting.
Respondent shall correct in an appropriate manner including painting.
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.
The Written Directive required Respondent to notify Investigator Allison of Respondent’s compliance with the directive prior to 5:00 p.m. on June 24, 2023, which also extended the deadline for the original Directive to June 24, 2023.
On August 7, 2023, Investigator Allison issued a Compliance Inspection Notice, setting the inspection for August 14, 2023. During the inspection, Compliance Items 6 and 7 were deemed “Not Corrected” and Compliance Item 9 was corrected using material “not suitable per manufacture[r].”
On September 5, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. §§ 32-1154(A)(3), specifically R4-9-108(A); and 32-1154(A)(22).
Respondent submitted an Answer to the Citation on September 20, 2023. Respondent’s Answer stated that it corrected the windowsill’s slope, but the second directive had new items and Respondent wanted additional time. Respondent also stated that it should not be held responsible for the materials used for the windowsill because it was only responsible for labor. Respondent also requested the Citation be dismissed.
On October 6, 2023, the Registrar denied the request to dismiss the Citation.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On October 20, 2023, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at December 4, 2023. At the time set for hearing, the parties had a prehearing conference and agreed to continue the hearing, allowing Respondent additional time to correct the work. Respondent confirmed his email address was the one on record.
A Status Update was set for January 22, 2024, and Complainant requested an additional continuance. The Status Update was reset to March 1, 2024. On February 29, 2024, Complainant requested the matter be set for hearing.
On March 8, 2024, the parties were notified that the hearing was continued to May 1, 2024. The order granting the continuance from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.
On May 1, 2024, only Complainant appeared. Complainant did not want to proceed without Investigator Allison, so she requested a continuance.
On May 3, 2024, the parties were notified that the hearing was continued to July 16, 2024. The order granting the continuance from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record. During the investigation, Investigator Allison achieved communication with Respondent using the same address and email address. At the December 4, 2023 hearing, Respondent confirmed its email address of record, and both Orders for virtual appearance were sent to the email address of record.
The hearing was held via Google Meet on July 16, 2024.
Respondent did not request that the hearing be further continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Allison testified that the windowsills were angled, but that the material was not approved by its manufacturer for that use. Additionally, the other corrective work had not been completed.
Complainant testified that Respondent was given lots of time and chances to complete the work, but it failed to correct the work. At the time of the hearing, the condition was worse than after Respondent initially competed the work.
Respondent failed to appear at the Hearing.
Administrative notice was taken of Respondent’s prior License record on July 18, 2024. According to that record, Respondent’s License No. 318143 was first issued on February 12, 2018. It was revoked on June 7, 2024 for discipline. There was one open complaint and one complaint resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
Respondent is deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.
This matter lies within the Registrar’s jurisdiction.
Respondent’s revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
A contractor accepts the materials they use to complete work. Prior to performing work, a contractor should ensure the materials are appropriate for the work to be performed; if the materials are unacceptable, the contractor should call the issue to the owner’s attention so that the owner can choose to pay for appropriate materials or for the contractor to request a warranty disclaimer.
The evidence established that Respondent did not perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A).
The evidence 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 for 10 days Respondent’s License No. 318143.
It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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, July 22, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Jasent Montano LLC
[email redacted]
Evelyn Hargis
[email redacted]
Chris Allison
[email redacted]
By: OAH Staff