ALJDEC - Licensing

2023A-09414-CHC-ROC · Registrar of Contractors · 2024-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Randy Emberton,

COMPLAINANT

v.

Skylight Construction LLC

License No. ROC 327413,

RESPONDENT

No. 2023A-09414-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 21, 2024

APPEARANCES: Complainant Randy Emberton appeared on his own behalf via Google Meet. Marco Holguin appeared via Google Meet on behalf of Respondent Skylight Construction LLC. Registrar of Contractors Investigator Jim Dimond appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Skylight Construction LLC (Respondent) is the holder of License No. 327413 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 9, 2021, Randy Emberton (Complainant) agreed to have Respondent construct a new house.

On or about August 15, 2023, the Registrar received a Complaint containing five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jim Dimond. The jobsite inspection was performed on September 20, 2023.

Investigator Dimond then issued a written directive on or about October 3, 2023, 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 October 24, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - MISSING ALL WINDOW SCREENS

Investigator’s Observation: The window screens are not installed.

The complainant maintains that the respondent has the screens and is refusing to provide them.

The respondent indicated that the complainant owes him a substantial amount of money.

He also indicated that he no longer has the screens.

The respondent is to resolve the condition 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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 2 - CONCRETE WORK (DRIVEWAY, PATIOS, ENTRY WAY, PORCHES)

Investigator’s Observation: The complainant has had the concrete installed by others.

Pursuant to ARS 32-115.D.2, the work has been modified by others and the ROC is prohibited from including this item on a citation if issued.

No action is required of the respondent

Governing rule: A violation cannot be sustained

Complaint Item: 3 - ELECTRICAL WORK

Investigator’s Observation: The electrical work was completed by others, including at the electrical supply panel.

Pursuant to ARS 32-115.D.2, the work has been modified by others and the ROC is prohibited from including this item on a citation if issued.

No action is required of the respondent

Governing Rule: A violation cannot be sustained

Complaint Item: 4 - INSIDE PAINT

Investigator’s Observation: The complainant has had the paint completed by others.

Pursuant to ARS 32-115.D.2, the work has been modified by others and the ROC is prohibited from including this item on a citation if issued.

No action is required of the respondent

Governing Rule: A violation cannot be sustained

Complaint Item: 5 – BATHROOMS

Investigator’s Observation: The bathrooms have been completed by others.

Pursuant to ARS 32-115.D.2, the work has been modified by others and the ROC is prohibited from including this item on a citation if issued.

No action is required of the respondent

Governing Rule: A violation cannot be sustained.

(All errors contained in the original)

On October 30, 2023, 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).

On or about November 13, 2023, Respondent e-mailed an Answer to the Registrar.

On or about December 15, 2023, a Notice of Hearing was issued setting a hearing on January 19, 2024, at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on February 21, 2024.

At hearing, Investigator Dimond testified as to the Registrar’s involvement and the above timeline.

Investigator Dimond testified that Complainant had four of the Complaint items repaired or performed by other contractors therefore, they were not subject to review by the Registrar.

As to the screens, Investigator Dimond testified that Respondent discarded the screens because Complainant failed to pay the remaining balance on the contract. Investigator Dimond added that he was aware of a civil lawsuit regarding the screens and that there was a judgment entered against Respondent as a result of the same.

Mr. Emberton testified that he had paid over $433,000.00 when he decided to fire Respondent in March 2023.

Further, Mr. Emberton testified he received a judgment in the amount of $1,818.00 for the screens in civil court.

Finally, Mr. Emberton requested that Respondent’s license be revoked.

Mr. Holguin, Respondent’s owner and Qualifying Party, testified that there were only cosmetic finished and paving to be completed when he was fired by text message in March 2023. Further, Mr. Holguin testified that Complainant owed him over $91,000.00 as and for the remaining balance on the contract.

In addition, Mr. Hoguin testified that he “got stupid” and threw away the screens.

Administrative notice was taken of Respondent’s prior License record on March 6, 2024. Such prior License record reflected that Respondent’s License No. 327413 was first issued on January 16, 2020, and reflected that there were four open complaints, one of which was the present complaint. There were also two resolved/settled cases and one disciplined case.

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 preponderance of the evidence established that Respondent did not install the screens and in fact, threw away the same. 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 Respondent failed to install the screens or pay for the same, such that Complainant obtained a judgment, which as of the date of hearing had not been paid. 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. 327413 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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)(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, March 6, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Skylight Construction LLC

[email redacted]

Randy Emberton

[email redacted]

By: OAH Staff