ALJDEC - Licensing
2023A-14644-CHC-ROC · Registrar of Contractors · 2024-07-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tina Presley ,
COMPLAINANT
v.
Abarca & Sons LLC
License No. ROC 326687,
RESPONDENT
No. 2023A-14644-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 8, 2024
APPEARANCES: Taylor J. Barlow, Esq. represented Tina Presley (Complaint). Miguel Abarca represented Abarca & Sons LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On May 30, 2024, the Arizona Registrar of Contractors, (Registrar of ROC), issued a Notice of Hearing setting the above-entitled matter for hearing on July 8, 2024.
2. A hearing was held on July 8, 2024.
3. At hearing, Michael Springer, an investigator for the Registrar, testified regarding his investigation of the complaint. Respondent’s qualifying party, Miguel Abarca, testified on behalf of Respondent.
4. On or about August 2, 2022, Respondent agreed to remodel Complainant’s home located in Wilcox, Arizona, for the amount of $365,000. Complainant paid Respondent $269,600 for the renovation.
5. On or about August 2, 2022, Respondent started work.
6. On or about November 20, 2023, Respondent stopped work.
7. On or about December 28, 2023, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.
8. Respondent did not provide Complainant with a written contract that notified Complainant of her right to file a complaint with the Registrar against Respondent, for an alleged violation of A.R.S. §§ 32-1154(A) within the time allowed by A.R.S. § 32-1155(A).
9. The Registrar assigned the complaint to Investigator Springer.
10. On or about March 5, 2024, Investigator Springer conducted a job-site inspection. Investigator Springer discovered that Respondent performed poor work in connection with complaint items 1, 2, 3, 4, 6, 9, 10, 15, 17, 19, 20, 25, 28, 30, 32, 33, 34, 36, 37, 38, and 40.
11. On March 7, 2024, the Registrar issued a Directive to Respondent. Through the Directive, the Registrar directed Respondent to correct complaint items 1, 2, 3, 4, 6, 9, 10, 15, 17, 19, 20, 25, 28, 30, 32, 33, 34, 36, 37, 38, and 40 by appropriate means, no later than 5:00 p.m. on March 25, 2024.
12. On April 16, 2024, Investigator Springer conducted a compliance inspection and discovered that Respondent had failed to correct all of the items listed in the Directive.
13. On May 30, 2024, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3),(12), and (22), A.R.S. § 32-1158, and Arizona Administrative Code (A.A.C.) R4-9-108(C).
14. Respondent filed a timely answer to the Citation.
15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
16. At hearing, Investigator Springer testified consistently with his job-site and compliance inspection notes. Mr. Abarca did not dispute the findings of Investigator Springer. Mr. Abarca explained that a plumber was required to perform over half of the corrections and Respondent does not hold a plumbing license. Mr. Abarca stated that it was difficult to find a licensed plumber who would come to Wilcox, AZ in the time allowed under the Directive. Mr. Abarca stated that he would have needed more time than that allowed under the Directive to make the corrections. However, Mr. Abarca did not request an extension from the Registrar during the time allowed under the Directive.
17. Administrative notice is taken of Respondent’s prior License record on
July 29, 2024. Such prior License record reflects that Respondent’s License No. 326687 was first issued on October 30, 2019, and is active. Such prior License record also reflects that there is one open complaint against Respondent’s license, one complaint has resulted in discipline of Respondent’s license, and one complaint was resolved or settled by Respondent after the issuance of a corrective action or formal citation.
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 violation 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 Vazanno 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 shows that the issues found by Investigator Springer constituted workmanship issues in connection with Complainant’s home renovation in Wilcox, Arizona. Therefore, the Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(C).
The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).
The preponderance of the evidence showed that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Abarca & Sons LLC License No: 326687 for a period of three (3) days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
It is further recommended, on or before thirty (30) days after the effective date of the Registrar’s final order, Respondent shall provide acceptable written proof to the Registrar of its form contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that its contracts comply with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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, July 29, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Taylor J. Barlow, Esq.
David W. Williams Esq.
Davis Miles PLLC
[email redacted]
Tina Presley
[email redacted]
Abarca & Sons LLC
[email redacted]
By: OAH Staff