ALJDEC - Licensing

2023A-05074-CHC-ROC · Registrar of Contractors · 2023-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jessica Miranda

COMPLAINANT

v.

Tap-Con Manufacturing, Inc.

License No. ROC 333693

RESPONDENT.

No. 2023A-05074-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2023

APPEARANCES: Complainant Jessica Miranda represented herself. Jesus Tapia represented Respondent Tap-Con Manufacturing, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

On July 17, 2023, the Arizona Registrar of Contractors (Registrar of ROC) issued a Notice of Hearing setting the above-captioned matter for hearing on September 11, 2022.

The Notice of Hearing provided that the complaint and citation allege that Respondent Tap-Con Manufacturing, Inc. violated Arizona Revised Statutes (A.R.S.) §§ 32-1154 (A)(3), (A)(12), (A)(22); A.R.S. § 32-1158 and Arizona Administrative Code (A.A.C.) R4-9-108(A).

According to the Registrar’s public website, Jesus Tapia is the qualifying party for Respondent Tap-Con Manufacturing, Inc.

A hearing was held on September 11, 2022. Complainant Jessica Miranda testified on her own behalf. Registrar Investigator Ruben Perez Jr. testified regarding his investigation of the complaint. Mr. Tapia testified on behalf of Respondent.

On October 27, 2022, Complainant and Respondent entered into a kitchen remodeling contract wherein Respondent agreed to refinish cabinets and install new countertops in Complainant’s kitchen for the amount of $9,075.00.

The contract did not include the minimum elements of a contract as required under Arizona Revised Statutes (A.R.S.) § 32-1158(A).

On or about November 30, 2022, Complainant started work.

On or about January 11, 2023, Complainant stopped work.

On or about May 3, 2023, Complainant filed a complaint with the Registrar that included 17 items. Through the complaint, Complainant alleged poor workmanship on the part of Respondent.

On May 26, 2023, Investigator Ruben Perez Sr. conducted a job-site inspection.

On June 6, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct complaint items 1, 3, 5, 7, 8, 10, 12, and 14, by appropriate means, no later than June 22, 2023.

On July 5, 2023, Inspector Perez Jr. conducted a compliance job-site inspection. Inspector Perez concluded that Respondent corrected all of the items listed in the Directive with the exception of complaint items 8 and 14. Inspector Perez’s job-site inspection notes provided, in relevant part, as follows:

Complaint Item 8: Excessive wood filler to cover up poor cuts & mistakes;

Investigator’s Observation: Bottom kitchen cabinet (near stove) was observed with excessive wood filler on shelf. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108 This item was not complied with as per written directive as cabinet was observed in same condition as in initial inspection.

Complaint Item 14: uneven wood stain

Investigator’s Observation: A top cabinet door was observed with excessive wood stain. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108 This item was not complied with as per written directive as cabinet was observed in same condition as in initial inspection.

On July 6, 2023, the Registrar issued a Citation to Respondent.

Respondent filed an answer to the Citation.

At hearing, Complainant explained that Respondent performed poor work when Respondent remodeled her kitchen. Mr. Tilapia explained testified to the effect that Respondent was negatively impacted by the COVID-19 pandemic.

Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on October 2, 2023. Respondent’s license record shows that its license was issued on June 15, 2021, and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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 a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

6. The preponderance of the evidence shows that Respondent failed to

correct all of the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

7. The undisputed evidence established that the contract did not include the basic elements of a contract as required under Ariz. Rev. Stat. section 32-1158(A).

8. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 333693 held by Tap-Con Manufacturing, Inc., for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective

date of the Registrar’s final order, Respondent shall provide acceptable written proof to the Registrar to demonstrate that it has amended its form contract(s) to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32- 1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, October 2, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

Cindy Casaus

Registrar of Contractors

c/o Legal Department

[email redacted]

By: OAH Staff

Jessica Miranda

[email redacted]

Ruben Perez Sr.

[email redacted]

Tap-Con Manufacturing, Inc.

[email redacted]