ALJDEC - Licensing

2023A-08550-CHC-ROC · Registrar of Contractors · 2024-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Adela Hernandez ,

COMPLAINANT

v.

Navarro's Outdoor Environments, LLC

License No. ROC 328497 and 327455,

RESPONDENT

No. 2023A-08550-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 14, 2023

APPEARANCES: Adela Hernandez appeared on her own behalf. Oscar Navarro, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Navarro’s Outdoor Environments, LLC (Respondent) is the holder of License No. 328497 and 327455 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 28, 2022, Adela Hernandez (Complainant) entered into a contract with Respondent for, among other things, the building of a new pool with surrounding landscaping.

On or about July 28, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator James Carter. After a jobsite inspection, Investigator Carter 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 September 13, 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:

Compliance Item: 1 - Pool pump never installed;

Investigator’s Observation: Verified. Respondent shall complete project

per original contract agreement, properly executed change orders, verbal

agreements, local building codes and manufacturers installation instructions.

Governing Rule: Abandonment of a contract or refusal to

perform after submitting a bid on work without legal excuse for the

abandonment or refusal.

Compliance Item: 2 - Electrical panel and wiring for pump and lights never installed;

Investigator’s Observation: Verified. Respondent shall complete project

per original contract agreement, properly executed change orders, verbal

agreements, local building codes and manufacturers installation instructions.

Governing Rule: Abandonment of a contract or refusal to

perform after submitting a bid on work without legal excuse for the

abandonment or refusal.

Compliance Item: 3 - Pool lights never installed;

Investigator’s Observation: Verified. Respondent shall complete project

per original contract agreement, properly executed change orders, verbal

agreements, local building codes and manufacturers installation instructions.

Governing Rule: Abandonment of a contract or refusal to

perform after submitting a bid on work without legal excuse for the

abandonment or refusal.

Compliance Item: 4 - Pebble tech surface not installed

Investigator’s Observation: Verified. Respondent shall complete project

per original contract agreement, properly executed change orders, verbal

agreements, local building codes and manufacturers installation instructions.

Governing Rule: Abandonment of a contract or refusal to

perform after submitting a bid on work without legal excuse for the

abandonment or refusal.

All errors contained in original.

Following the issuance of the written directive, no work was completed. After the deadline in the directive expired, Investigator Carter was notified that no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1) and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Carter testified consistent with the dates cited above. He also testified consistent with his written directive.

Complainant called her husband, Antonio Hernandez, as a witness. Mr. Hernandez testified that at the time of signing the contract, the projected date of completion was July of 2022. Work on the pool began around March of 2022, and in the beginning things were going well. However, as of January 2023, Mr. Hernandez testified that Respondent informed him that it was having trouble finding labor and as of March 2023, all work on the pool had stopped. After multiple text messages, Mr. Hernandez learned that Respondent would be unable to complete the work because it was experiencing financial difficulties.

Oscar Navarro, qualifying party, testified on behalf of Respondent. Mr. Navarro testified consistent with Mr. Hernandez’s testimony. He affirmed all of the facts as true and was very apologetic and stated his desire to “make things right” however he was able to for Complainant.

Administrative notice is taken of Respondent’s prior License record on January 2, 2024. Such prior License record reflects that Respondent’s License No. 328497 was first issued on April 15, 2020, and was suspended on September 27, 2023, due to a payout from the Recovery Fund. Such prior License record also reflects that there are no other open complaints and one prior complaint resulting in discipline against Respondent’s license.

Administrative notice is taken of Respondent’s prior License record on January 2, 2024. Such prior License record reflects that Respondent’s License No. 327455 was first issued on January 17, 2020, and was revoked on September 26, 2023. Such prior License record also reflects that there are no other open complaints and four prior complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Respondent’s suspended and revoked licenses do not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint.

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 submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(1).

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 shall revoke Respondent’s License No. 328497.

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 327455 for a period of three 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)(5), 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, January 2, 2024.

/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