ALJDEC - Licensing

2023A-08019-CHC-ROC · Registrar of Contractors · 2024-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alane Moore

COMPLAINANT,

v.

New Generation Building LLC

License No. ROC 324115,

RESPONDENT.

No. 2023A-08019-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 29, 2024 and February 8, 2024

APPEARANCES: Complainant Alane Moore represented herself. Eduardo H. Coronado, Esq. represented Respondent New Generation Building, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 10. Respondent’s Exhibits 1 through 4.

_____________________________________________________________________

FINDINGS OF FACT

On November 9, 2023, the Registrar of Contractors, (Registrar or ROC),

issued a Notice of Hearing setting the above-captioned matter for hearing at 9:00 a.m. on December 14, 2023, by the Office of Administrative Hearings in Phoenix, Arizona.

2. Respondent holds license number 324115 issued by the Registrar.

3. The Notice of Hearing shows that the hearing was set to consider

the charges made in the Citation and Complaint.

4. Through the Citation, the Registrar alleges that Respondent may have

violated Ariz. Rev. Stat. section 32-1154(A)(3); (specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. section 32-1154 (A)(22).

5. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

6. On or about May 28, 2020, Complainant and Respondent entered into a residential construction contract wherein Respondent would build a new home for Complainant, for the amount of $251,000.

7. Complainant paid Respondent $251,000 for the work.

8. On or about January 9, 2020, Respondent began work.

9. On or about July 25, 2022, Respondent stopped work.

10. On or about July 17, 2023, the Registrar received a Complaint from Complainant alleging abandonment and poor work on the part of Respondent.

11. The Registrar assigned the complaint to one of its investigators, Miles Crosby (Investigator Crosby).

12. On or about August 9, 2023, Investigator Crosby conducted a job-site inspection.

13. On August 16, 2023, Investigator Crosby issued a Directive

to Respondent, directing Respondent correct complaint items 1 through 9, 11 through 19, 21, 23 through 31, 34, and 37, by appropriate means. The Directive further provided, in relevant part, as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 1, 2023.

........................................................

Extensions: If good cause exists to extend this deadline, either party may submit a written request to the Investigator. The Registrar will review requests for extension and determine if the Directive should be extended.

Emphasis in original.

14. Respondent did not correct the items listed in the Directive during the

time period for compliance.

15. On or about September 8, 2023, Investigator Crosby conducted a compliance job-site inspection. Investigator Crosby found that Respondent failed to correct the items listed in the Directive. Investigator Crosby’s compliance job-site inspection notes provided, in relevant part, as follows:

The Respondent did not attempt to comply with the Written Directive until the due date 9/1/23. I was advised by the Complainant that no attempts were made to cure the mold issue within the residence. Once at the CJSI it was very clear the Respondent was attempting to hide the issue and did not correct by appropriate means. The Mold analysis indicated remediation is required throughout the house due to the air being contaminated as well. As the ROC does not inspection or analyze Mold, the Respondent should have and was advised it would be appropriate to get a 3rd party to do testing. The Complainant took this upon herself to have the residence tested. No area where water damage was present was open for observation and as the Respondent is not licensed to remediate mold and no documentation was provided to by the Respondent, I can confirm this was not Corrected by Appropriate Means.

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. At hearing, Complainant testified on behalf of herself. Respondent presented the testimony of Jose Figuerora and Tami Matthews. Investigator Crosby testified regarding his investigation of the complaint.

18. Investigator Crosby testified consistently with his job-site inspection notes, the Directive, and the compliance job-site inspection notes. Investigator Crosby acknowledged that he did not direct Respondent to remediate mold in through the Directive. However, Investigator Crosby stated that an assessment for the existence of mold would have been required when Respondent conducted many of the repairs listed in the Directive.

19. Complainant explained that Respondent performed poor work when it constructed her home. Complainant explained Respondent’s work caused mold in her home. However, Complainant explained that she did not discover mold in her home until after September 1, 2023. Accordingly, mold was not included in the complaint, nor in the Directive.

20. Mr. Figuerora is the owner of Respondent. Ms. Matthews is Respondent’s administrator. Mr. Figuerora and Ms. Matthews both testified that it would have taken more than the two weeks allotted under the Directive to repair the mold and make the corrections required by the ROC. Ms. Matthews testified that she contacted Investigator Crosby on August 31, 2023 and requested an extension to comply with the Directive. However, there was no written evidence presented to establish that the extension was requested. Furthermore, Ms. Matthews allegedly submitted the request before mold was found in the home.

21. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 28, 2024, Respondent’s license was first issued on April 15, 2019, and is active. Such prior License record also shows that no complaints have resulted in discipline of Respondent’s license. Such prior License record further shows that one complaint was resolved or settled by Respondent after the issuance of a corrective order or citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 section 5 (1960).

3. The preponderance of the evidence shows that the issues found

by Investigator Crosby in his initial job-site inspection demonstrate that Respondent failed to perform 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).

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

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 324115 held by New Generation Building LLC for five 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. 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.

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, February 28, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Alane Moore

[email redacted]

Eduardo H. Coronado, ESQ.

Shaffery & Coronado PC

[email redacted]

By: OAH Staff