ALJDEC - Licensing
2023A-13304-CHC-ROC · Registrar of Contractors · 2024-04-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kathleen Jarocki ,
COMPLAINANT
v.
Hula Construction Inc.
License No. ROC 261460,
RESPONDENT
No. 2023A-13304-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 26, 2024
APPEARANCES: Complainant Kathleen Jarocki appeared on her own behalf. Respondent Hula Construction Inc. did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s exhibits 1 through 8 were admitted.
_____________________________________________________________________
FINDINGS OF FACT
Hula Construction Inc. (Respondent) is the holder of License No. 261460 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 20, 2023, Kathleen Jarocki (Complainant) entered into a contract with Respondent for, among other things, the repair of a wrought iron fence.
On or about November 18, 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 Michael Wiskow. After a jobsite inspection, Investigator Wiskow 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 January 22, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - It was a wrought iron fence that should have been powder coated the first time, but clearly was not.
Investigator’s Observation: Confirmed. With all the rust present, the fence is not powder coated.
Contractor should supply and install a powder coated fence per contract by appropriate means. .
. . . .
Compliance Item: 2 - Wrought iron post that was supposed to be replaced connecting gate on 1 side of house (and is a different color) was NOT replaced per contract from previous initial setup.
Investigator’s Observation: Confirmed. There is a piece [of] the fence connected to the house that was never replaced. The piece on the house should be new and powder coated per contract
Contractor should repair by appropriate means.
. . . .
Compliance Item: 3 - Multiple rails have numerous holes and scratches in them, appearing to be not "new" as contract stated.
Investigator’s Observation: Confirmed. There are posts with holes in them. The posts should not have holes in them.
Contractor should verify any holes in the fence and repair by appropriate means.
. . . .
Compliance Item: 4 - Multiple connector pieces to rails have rust on them.
Investigator’s Observation: Confirmed. There is rust on several components of the fence. There should be no rust since it is supposed to be powder coated.
Contractor should repair by appropriate means.
. . . .
Compliance Item: 5 - Lock piece is put on backwards on outside of fence, rather than inside. (on 1 side of fence).
Investigator’s Observation: Confirmed. The receiving latch is on the operating gate on the right side gate of the home. The receiving latch should be on the stationary post like it is on the opposing side of the home.
Contractor should repair by appropriate means.
. . . .
Compliance Item: 6 - Multiple connector pieces to post do not line up with the post or is not secured properly
Investigator’s Observation: Confirmed. There are several rail-to-post connectors that are not completely fastened to the post (gap). The connectors should be completely fastened to the post with no gap.
Contractor should repair by appropriate means.
. . . .
Compliance Item: 7 - Some bolts on bottom of rails that connect to post are not put in correctly; not flush with the post.
Investigator’s Observation: Confirmed. Some of the connecting bolts at the bottom of the posts are installed at an angle and the heads are not securely flush with the post. The bolts should be completely installed.
Contractor should repair by appropriate means.
Following the issuance of the written directive, Respondent made no attempts to contact Complainant regarding the project or to schedule any corrective work. After the deadline in the directive expired, Investigator Wiskow 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); 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 Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on March 26, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A February 14, 2024 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on March 26, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Wiskow testified consistently with his jobsite inspection and written directive.
Complainant testified that Respondent made no attempts to contact her after the written directive was issued.
Administrative notice is taken of Respondent’s prior License record on April 15, 2024. Such prior License record reflects that Respondent’s License No. 261460 was first issued on December 30, 2009, and was revoked on March 11, 2024. Such prior License record also reflects that there were two open complaints and six prior complaints resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Respondent’s revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).
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 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 revoke Respondent’s License No. 261460.
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, April 15, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Kathleen Jarocki
[email redacted]
Mike Wiskow
[email redacted]
Hula Construction Inc.
[email redacted]
By: OAH Staff