ALJDEC - Licensing
2023A-13683-CHC-ROC · Registrar of Contractors · 2024-05-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Peter Anunson,
COMPLAINANT
v.
Harmony Homes & Remodeling LLC
License No. ROC 322567,
RESPONDENT
No. 2023A-13683-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 1, 2024
APPEARANCES: Complainant Peter Anunson appeared on his own behalf. Nick Banfe, Owner and Qualifying Party, appeared on behalf of Respondent Harmony Homes & Remodeling LLC.
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
Harmony Homes & Remodeling LLC (Respondent) is the holder of License No. 322567 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 23, 2023, Peter Anunson (Complainant) entered into a contract with Respondent for, among other things, the sealing of the front and back patio.
On or about November 30, 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 Mark Nipp. After a jobsite inspection, Investigator Nipp 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 February 5, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item #1: Concrete sealant not correctly installed.
Investigator’s Observation: Verified
The Complainant explained that the Respondent applied a sealant to the front porch and back patio.
Font Porch (P3-10):
I saw that the concrete had been coated; however, there were large sections that did not appear to have cured properly. These areas appeared white and were predominant on the outer edges and control joints.
Back Patio (P11-16):
I saw that the concrete had been coated; however, there were sections that did not appear to have cured properly. These areas appeared white and were most predominant on the outer edges. I also noted that there were large sections throughout the patio that appeared to be inadequately covered by the sealant.
ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 3-16
Following the issuance of the written directive, Respondent did not contact Complainant regarding the corrective work. After the deadline in the directive expired, Investigator Nipp 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).
Investigator Nipp testified that it appeared that sections of the sealant applied had not cured properly.
Complainant testified that the sealant was not appropriately applied and needed to be corrected. Complainant stated that Respondent made no attempt to contact him after the written directive was issued.
Mr. Banfe initially stated he did not receive a copy of the written directive before the deadline in the written directive expired, but upon questioning, he indicated he was referring to the notice of the complaint. Mr. Banfe admitted that he did not contact Complainant by text between November 30, 2023, and February 16, 2024, with respect to the work needing to be performed.
Administrative notice is taken of Respondent’s prior License record on May 21, 2024. Such prior License record reflects that Respondent’s License No. 322567 was first issued on November 7, 2018, 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 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. 322567 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, May 21, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Peter Anunson
[email redacted]
Mark Nipp
[email redacted]
Harmony Homes & Remodeling LLC
[email redacted]
By: OAH Staff