ALJDEC - Licensing

2023A-07758-CHC-ROC · Registrar of Contractors · 2023-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bonnie Lynn Spark,

COMPLAINANT

v.

Hula Construction Inc.

License No. ROC 261460,

RESPONDENT

No. 2023A-07758-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2023

APPEARANCES: Bonnie Spark appeared on her own behalf. Hula Construction Inc. failed to appear.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the agency record. _____________________________________________________________________

FINDINGS OF FACT

Hula Construction Inc. (Respondent) is the holder of License No. 261460 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 13, 2023, Bonnie Spark (Complainant) entered into a contract with Respondent for, among other things, a remodel of her backyard.

On or about July 10, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Joey Chester. After a jobsite inspection, Investigator Chester 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 25, 2023.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 4: Concrete (driveway) same as above except no rebar was used multiple cracks and disintegration

Investigator’s Observation: At time of inspection multiple cracks and pieces of concrete peeling away near edges, respondent to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 6: 10' RV Gate - not provided

Investigator’s Observation: At time of inspection, no gate has been built or delivered to jobsite, respondent will need to complete as appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 7: 4' iron gate - not provided

Investigator’s Observation: During inspection a picture of the gate was shown to me but was not at jobsite, respondent will need to complete courtyard gate as appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 9: Gravel pushed into piles & left underlayment torn up & thrown away

Investigator’s Observation: At time of inspection multiple pile of gravel were around backyard, no discussion of gravel movement in bid. Respondent will need to redistribute gravel in a uniform manner as prior to beginning of job.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 12: Courtyard 5/20/23 $8600 payments requested, 5/20/23 $4000/ 5/25/23- $4600 - work not completed - Painting not finished

Investigator’s Observation: At time of inspection the wall has not been painted on top. Respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 13: pavers not sealed - 2 large leaks under pavers and new wall section washed away sand. Pavers dug up & left.

Investigator’s Observation: At time of inspection pavers in courtyard had not been completed and covering up irrigation line, Respondent will need to fix by appropriate means

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 14: walkway (backyard) no walkway

Investigator’s Observation: During inspection no paver walkway to concrete pad had been completed, respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

All errors in original.

Following the issuance of the written directive, the Respondent took no action. After the deadline in the directive expired, Investigator Chester was notified that Complainant had to purchase the 10’ RV Gate and the 4’ iron gate herself in order to provide herself privacy.

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

On November 1, 2023, the Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on December 12, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. A December 7, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on December 12, 2023.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 10 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Chester testified consistently with his Written Directive. He also testified that no corrective work had been performed pursuant to his Written Directive.

Judicial notice was taken of the Notice of Hearing and all of its documents contained therein.

Administrative notice is taken of Respondent’s prior License record on December 12, 2023. Such prior License record reflects that Respondent’s License No. 261460 was first issued on December 30, 2009, and has been suspended since November 9, 2023 due to a Disciplinary Suspension. Such prior License record also reflects that there were no other open complaints and two prior complaints resulting in legal suspensions of Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing.

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.”

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

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 Ariz. Rev. Stat. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar suspend Respondent’s License No. 261460 for a period of 15 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(7), 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, December 28, 2023.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff