ALJDEC - Licensing

2023A-04282-CHC-ROC · Registrar of Contractors · 2023-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan D'Agostino,

COMPLAINANT

v.

The Creta Group LLC

License No. ROC 318688,

RESPONDENT

No. 2023A-04282-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 2, 2023

APPEARANCES: Complainant Ryan D’Agostino appeared on his own behalf. Ioan Galea, Qualifying Party, appeared on behalf of Respondent The Creta Group LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Creta Group LLC (Respondent) is the holder of License No. 318688 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 17, 2023, Ryan D’Agostino (Complainant) entered into a contract with Respondent for the construction of a deck. Complainant paid Respondent $8,000.00 as a deposit on the contract. The contract included the following provision:

After the contract is signed, and the deposit is received and processed, if the owner or payment remitter stops the work after any consulting, planning, or work is completed and a request to have the money reimbursed is received, The Creta Group LLC is entitled to retain any sustained costs from the initial consulting and up to the cost of any work or extra consultation costs that have already occured [sic] prior to and after a signed contract and will be billed upon the owner canceling the contract at a minimum of $150 an hour per man hour plus $50 travel charge per visit per employee, and up to $300 per hour for subcontractors, or architects, and engineers that were required or retained for the job, plus the cost of the lead, materials, permitting, or state/county/city fees that were paid or are to be paid. The minimum cancellation fee is $500 unless the above costs are higher than that would be the total cost of canceling the signed contract. Canceling a contract does not entitle you the client to a full refund.

Complainant paid a deposit of $8,000.00 towards the project.

After initially hiring Respondent, Complainant requested a number of changes to the project. Significantly, Complainant originally requested the demolition of an existing concrete patio and the construction of a large deck.

On or about April 11, 2023, the Registrar received a complaint against Respondent from Complainant abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg.

On or about June 1, 2023, Investigator Fagerburg conducted a jobsite inspection. During the course of the inspection, Investigator Fagerburg noted that Respondent accepted $8,000.00 towards the project and no work was performed.

Because Respondent’s license was suspended at the time of the jobsite inspection, Investigator Fagerburg did not issue a written directive.

The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1).

Investigator Fagerburg testified that he could not locate a permit application relating to this project.

Complainant testified that he paid a $500.00 deposit for Respondent to look at the project and then paid an additional $7,500.00 to move forward. Complainant stated that, when he wanted to alter the project to include a garage with the deck on top of it, Respondent notified him that the $8,000.00 deposit had already been spent on meetings and plans and he would have to pay more to move forward with the change in project.

Mr. Galea acknowledged receipt of $8,000.00 from Complainant. Mr. Galea testified that Complainant proposed changing the project from a relatively simple large deck to an enclosed storage or garage with a deck. Mr. Galea indicated surveying and engineering would be required to proceed with the expanded project Complainant envisioned. While Mr. Galea did not provide an exact accounting, Mr. Galea testified that the multiple trips to the project and work performed on the altered project proposal accounted for the use of the $8,000.00 deposit.

Administrative notice is taken of Respondent’s prior License record on August 21, 2023. Such prior License record reflects that Respondent’s License No. 318688 was first issued on March 23, 2018, and is active. Such prior License record also reflects that there were three open complaints, three prior resolved/settled complaints, and two prior complaints resulting in discipline against Respondent’s license.

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 submitted a bid for Complainant’s project and did not perform the work in the bid. However, Complainant no longer wanted Respondent to build the deck in the original contract. Because Complainant did not want the original deck built, but would not sign a change order, Respondent was excused from performing the work in the bid.

Accordingly, Complainant failed to establish that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

Nothing in this decision should be read to find that Complainant may not have a cause of action against Respondent in a different venue. However, the administrative process is not the appropriate venue to resolve those issues.

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Ryan D’Agostino’s complaint in Case No. 2023-04282 against Respondent The Creta Group LLC’s License No. 318688.

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, August 21, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

David Fagerburg

[email redacted]

The Creta Group LLC

[email redacted]

Ryan D'Agostino

[email redacted]

By: OAH Staff