ALJDEC - Licensing

2023A-06039-CHC-ROC · Registrar of Contractors · 2023-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Eric Feller,

COMPLAINANT

v.

RHINO CONCRETE LLC

License No. ROC 335131,

RESPONDENT

No. 2023A-06039-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2023

APPEARANCES: Complainant Eric Feller appeared on his own behalf. Diego Beltran, Owner and Qualifying Party, appeared on behalf of Respondent RHINO CONCRETE LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Hearing Packet

_____________________________________________________________________

FINDINGS OF FACT

RHINO CONCRETE LLC (Respondent) is the holder of License No. 335131 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 12, 2023, Eric Feller (Complainant) entered into a contract with Respondent for concrete work. The contract did not include Respondent’s license number, a breakdown of payment schedule, an estimated date of completion, or a notice that the homeowner had the right to file a complaint with the Registrar.

On or about May 25, 2023, the Registrar received a Complaint against Respondent from Complainant that Respondent was requesting additional money to complete the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on August 4, 2023.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Contractor wants more money to finish job. Have numerous text messages from him. Need ROC to settle dispute. he has not spent nearly $56,000 pouring footings and stem wall footings are 27 yards of concrete per Cemex, and he has ordered the same for stem walls. refusing to finish job unless I pay him more. Claims he has already spent $56,000 doing footings and stem wall. house is 3250 sq feet with an 1350 sq ft garage. again he has a contract with me on price..;

stem wall inspection done 5/10/22, after stem wall inspection he told plumber to hold off on doing pipes for septic and fresh water. electrical and plumbing under through stem wall done 5/22 originally told me concrete would be poured this week, now on June 8th. I contacted plumber to do work which was completed by 5/17/23.

He has not completed any work since then always claims next week.;

Does not return phone calls or texts, when told him I was going to file ROC complaint he texted still will not call.

Investigator’s Observation: The main footings for the home have been poured.

Several of the spread footers for columns have not been poured. The 3 porch spread footings are not poured.

1 portico spread is not poured and the other appears to have been used for wash out.

The 2 spreads in the back of the home for the porch are poured.

The stem wall has been formed up but has not been poured.

At the northeast corner of the home, a hard dig took place due to a vein of rock.

There will be some extra concrete finishing at this location.

It is reported that the footing has received approval to pour from the county.

The contract is $70K and $56K has been paid.

80% of the contract has been paid but nowhere close to 80% of the work has been completed.

The respondent indicates that concrete costs have increased. The contract between the parties does not have a clause that would be triggered by a price increase.

The only change order that was present was for the hard dig and the complainant agreed to it and paid it.

The respondent is to complete the contract 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.

Following the issuance of the written directive, Respondent did not perform any further work on the project. After the deadline in the directive expired, Investigator Dimond was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified as to his observations of the project.

Complainant testified that, because of Respondent’s delays, the construction of the home was delayed one year. Complainant requested that Respondent’s license be suspended for a similar length of time.

Mr. Beltran testified that this was the first estimate he had prepared as a licensed contractor. Mr. Beltran stated that English was not his first language, which he believed affected his ability to properly contract for this property. Mr. Beltran admitted he was never denied access to the property after the written directive had been issued.

Administrative notice is taken of Respondent’s prior License record on December 7, 2023. Such prior License record reflects that Respondent’s License No. 335131 was first issued on October 15, 2021, and is active. Such prior License record also reflects that there were no other open or prior complaints 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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant 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 Respondent’s License No. 335131 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts 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, December 7, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

RHINO CONCRETE LLC

[email redacted]

Eric Feller

[email redacted]

Jim Dimond

[email redacted]

By: OAH Staff