ALJDEC - Licensing

2023A-12322-CHC-ROC · Registrar of Contractors · 2024-03-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cameron Beatty,

COMPLAINANT

v.

Francisco Javier Garcia

DBA: Immaculate Contractor

License No. ROC 340548,

RESPONDENT

No. 2023A-12322-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2024

APPEARANCES: Complainant Cameron Beatty appeared on his own behalf. Respondent Francisco Javier Garcia appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Francisco Javier Garcia doing business as Immaculate Contractor (Respondent) is the holder of License No. 340548 issued by the Arizona Registrar of Contractors (Registrar). Respondent

On or about August 2023, Cameron Beatty (Complainant) entered into a contract with Respondent for, among other things, plumbing and remodeling.

On or about October 25, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator Springer 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 December 22nd, 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: 2 - wall not plumb in shower even though brand new wall was built

Investigator’s Observation: Shower/Back bathroom wall is approximately 3 inches out of plumb. Respondent not licensed for this work.

. . . .

Compliance Item: 5 - tub faucet and tub were not installed properly. reset and reinstalled myself

Investigator’s Observation: Tub was reset by Complainant. However, faucet for tub is shaking and loose. Respondent not licensed for this work.

Following the issuance of the written directive, Respondent did not reach out to Complainant regarding the written directive. After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.

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); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

Investigator Springer testified that the work performed by Respondent was outside the scope of its CR34, painting and drywall covering license. Investigator Springer stated that at a minimum, Respondent would have needed a B license to remodel the bathroom, install a new shower, and exterior wall work. Investigator Springer also noted that the parties did not provide him with a written contract.

Complainant testified that his major concern at the time of the hearing was that bathroom wall was out of plumb, which he discovered when trying to install new shower glass.

Mr. Garcia testified that he subcontracted the work that required a B license.

Administrative notice is taken of Respondent’s prior License record on March 29, 2024. Such prior License record reflects that Respondent’s License No. 340548 was first issued on September 2, 2022, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s performed or subcontracted work that was beyond the scope of its license. Therefore, Complainant established that Respondent contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

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 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. 340548 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 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)(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, March 29, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Cameron Beatty

[email redacted]

Francisco Javier Garcia

DBA: Immaculate Contractor

[email redacted]

Mike Springer

[email redacted]

By: OAH Staff