ALJDEC - Licensing

2023A-08557-CHC-ROC · Registrar of Contractors · 2024-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Paul Balland and

Deanne Balland,

COMPLAINANTS,

v.

Western Tech, LLC

License No. ROC 338375,

RESPONDENT.

No. 2023A-08557-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 7, 2024

APPEARANCES: Complainants Paul and Deanne Balland appeared on their own behalf. Respondent Western Tech, LLC failed to appeared. Arizona Registrar of Contractors Investigator James Carter appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Western Tech, LLC (“Respondent”) is the holder of License Number 338375 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about October 11, 2022, Paul and Deanne Balland (“Complainants”) contracted with Respondent for Respondent to install spray foam insulation in Complainants’ tortoise barn.

On or about August 1, 2023, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator James Carter. After an August 15, 2023 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 6, 2023.

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

Compliance Item: 1 - Brand New Roll up doors have insulation overspray all over them;

Investigator’s Observation: Verified. Inspector observed multiple roll up doors on the shed that had overspray from the insulation that did not scrape

off. The Respondent will need to correct this issue by the appropriate means.

Since the Respondent is no longer licensed to do this work, the appropriate

means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Cracking in Insulation-Resolved;

Investigator’s Observation: Complaint item had been completed/corrected prior to this JSI

Compliance Item: 3 - Insulation is not 1" thick-Resolved

Investigator’s Observation: Complaint item had been completed/corrected prior to this JSI

All errors in original.

Investigator Carter conducted a Compliance Inspection on September 7, 2023. Investigator Carter’s Compliance Jobsite General Notes state the following:

Compliance Findings: Written Directive was due on 09/06/2023 by 5:00 PM. Complaint was contacdted on 09/07/2023 and confirmed that there had been no work ord contact done by Respondent. Compliance Inspection was conducted on 09/07/2023 at 1:00 PM and I confirmed nothing was completed.

All errors in original.

Thereafter, Investigator Carter forwarded the matter to the Registrar’s Legal Department. 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), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing was scheduled to convene on November 21, 2023, at 1:00 p.m. Neither Complainant nor Respondent appeared. However, on November 22, 2023, Complainant filed a request to continue the hearing, having inadvertently mis-calendared the hearing.

On November 28, 2023, the Tribunal issued a Minute Entry Granting Continuance and Setting Hearing Via Google Meet. The Minute Entry advised the parties of the February 7, 2024, 9:00 a.m. hearing date and time, and contained the Google Meet link to join the hearing by video or by telephone. It was issued to Respondent’s email address of record.

On the date and at the time set for continued hearing, Complainants appeared on their own behalf. Investigator Carter was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Carter testified consistently with his findings contained in the Written Directive and the Compliance Jobsite General Notes. Investigator Carter testified that he called Respondent on August 1, 2023, to advise of the filed Complaint. Respondent’s representative informed Investigator Carter that Respondent had closed its business and was not re-opening. Respondent’s representative also stated that he was aware of the Complaint, that Respondent addressed two of the items of Complaint, and that the outstanding issue of the overspray could be cleaned and was “not an issue.”

Investigator Carter testified that during the Jobsite Inspection, he observed overspray on every door.

Investigator Carter testified that Respondent’s license was voluntarily placed on inactive status.

Complainants concurred with all of Investigator Carter’s testimony.

Administrative notice is taken of Respondent’s prior License record on February 22, 2024. Such prior License record reflects that Respondent’s License Number 338375 was first issued on May 24, 2022, and has been inactive since June 28, 2023. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear 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, Complainants 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 did not complete the corrective work following the Written Directive being issued and that valid justification for such failure did not exist notwithstanding Respondent’s inactive license status, as Respondent should have come to an appropriate resolution with Complainants. Therefore, Complainants 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 Number 338375 for a period of three (3) 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 (30) 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)(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 23, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Western Tech, LLC

[email redacted]

Paul and Deanne Balland

[email redacted]

James Carter

[email redacted]

By: OAH Staff