ALJDEC - Licensing
2023A-12491-CHC-ROC · Registrar of Contractors · 2024-03-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Harr Family Homes LLC,
COMPLAINANT
v.
Structures Cabinet & Design LLC
License No. ROC 323443,
RESPONDENT
No. 2023A-12491-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 1, 2024, 1:00 P.M.
APPEARANCES: Chad Harr, Operations Manager, appeared on behalf of Complainant; Michael McCurdy, President, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Structures Cabinet & Design, LLC (Respondent), is the holder of License Number 323443 issued by the Registrar of Contractors (Registrar).
2. On or about October 30, 2023, Harr Family Homes, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with cabinet installation by Respondent at a residence in Fountain Hills, Arizona (“project”).
3. The Registrar performed an inspection of the project on November 22, 2023. Thereafter, the Registrar issued a Directive, dated November 27, 2023, requiring Respondent to remedy the following violations by December 8, 2023):
Complaint Item: Cabinet order was placed and signed on 6/8/23. 70% of order was paid in the amount of $21,761.45; Cabinet company gave window of 12 weeks for cabinets to arrive at job; In pressing issue in October 2023, it was found out that the cabinet company never ordered or paid for cabinets for project.; Requesting our $21,761.45 Deposit back ASAP
Investigator’s Observation: Verified. I observed the kitchen, bathrooms and laundry areas of the residence and cabinets were not installed in the described locations, nor on site. Respondent shall complete project as per original contract agreement or may be issued a citation for Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
4. Thereafter, after being informed that Respondent had not progressed with the work or had not paid Complainant back, the Registrar then issued a Citation to Respondent, dated December 12, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without a valid justification).
5. The Registrar issued a Notice of Hearing that set a hearing for March 1, 2024, at 1:00 P.M. At the March 1, 2024 hearing, Complainant presented the testimony of Chad Harr, Operations Manager; Respondent presented the testimony of Michael McCurdy, President. Robert Di Alto, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
6. The Investigator testified on behalf of the Registrar consistently with his job inspection notes and the photographs he took. He testified he observed no cabinetry had been installed at the project. He further testified that Respondent had advised him that it had sought a loan to pay Complainant back.
7. As herein relevant to the Citation, Complainant Chad Harr testified on behalf of Complainant that he was paid back $3,500.00 on November 15, 2023, but that $18,261.45 is still owed.
8. As herein relevant to the Citation, Michael McCurdy testified on behalf of Respondent that he had no defense and admitted he owed Complainant money because the cabinets had not been installed. He stated he had had difficulty in ordering the cabinets and has now tried to get loans to return Complainant’s funds.
9. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on February 4, 2019. The site also reflects two open cases and one disciplined case.
.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
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5. A.R.S. § 32-1154(A)(1). Complainant has presented sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no dispute that Respondent did not complete the project and there was no evidence presented of a valid legal excuse for failing to do so.
6. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no evidence presented of a valid justification for failing to complete the project.
7. Accordingly, the Tribunal finds that Complainant has established by a preponderance of the evidence that Respondent’s license should be disciplined for a violation of § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Structures Cabinet & Design, LLC’s, License Number 323443 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 the 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 20, 2024
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Structures Cabinet & Design LLC
[email redacted]
Harr Family Homes LLC
[email redacted]
By: OAH Staff