ALJDEC - Licensing

2024A-00401-CHC-ROC · Registrar of Contractors · 2024-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martha Latorre,

COMPLAINANT

v.

Skylight Construction LLC

License No. ROC 327413,

RESPONDENT

No. 2024A-00400-CHC-ROC

No. 2024A-00401-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 2, 2024

APPEARANCES: Complainant Martha Latorre appeared on her own behalf. Marco Holguin, Owner and Qualifying Party, appeared on behalf of Respondent Skylight Construction 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

Skylight Construction LLC (Respondent) is the holder of License No. 327413 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 25, 2021, Martha Latorre (Complainant) entered into a contract with Respondent for the construction of a new home. The contract did not contain an advisement that the homeowner could file a complaint with the Registrar of Contractors.

On or about November 1, 2021, Complainant entered into a second contract with Respondent for the construction of a garage. The contract did not contain an estimated date of completion or an advisement that the homeowner could file a complaint with the Registrar of Contractors.

On or about January 10, 2024, the Registrar received a complaint against Respondent from Complainant alleging abandonment and poor work with respect to the house project. The Registrar designated the complaint as 2024-00400.

On or about January 11, 2024, the Registrar received a complaint against Respondent from Complainant alleging abandonment with respect to the garage project. The Registrar designated the complaint as 2024-00401.

The Registrar assigned the complaints to Investigator Michael Wiskow.

On or about February 20, 2024, Investigator Wiskow performed a jobsite inspection as to both complaints.

On or about February 21, 2024, Investigator Wiskow issued a written directive to Respondent that provided, as to complaint 2024-00400, as follows:

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - We signed a contract May 25, 2021 with the respondent for building our house. The house is not finished

Investigator’s Observation: The home is substantially completed. Items left to be completed are but not limited to; Exterior grading, entry doors, 6-8 interior doors, paint touch up and clean up, electrical final, installation of appliances and carpet.

On or about February 21, 2024, Investigator Wiskow issued a written directive to Respondent that provided, as to complaint 2024-00401, as follows:

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - The respondent abandoned the garage construction project.

Investigator’s Observation: The garage foundation is substantially completed. The backfill is not completed. There are no materials on sight. Respondent should finish the garage project per contract and get all necessary inspections from the local building authority by appropriate means.

The deadline for both written directives was March 8, 2024.

Following the issuance of the written directives, Respondent did not perform any additional work on the projects. After the deadline in the directives expired, Investigator Wiskow was notified no corrective work had been performed.

The Registrar issued Citations against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Wiskow testified that Respondent did not ask for an extension of the deadline in the written directive.

Complainant testified that Respondent had not performed any work on the projects for more than six months prior to the hearing. The contract provided that it would take ten months to build the home, but more than three years later the home was not complete. Complainant was forced to pay a mortgage for a home she could not live in while also paying rent.

Mr. Holguin testified that Complainant attempted to fire Respondent from the project but did not specify when that occurred. Mr. Holguin maintained that the project suffered from material shortages. Mr. Holguin asserted that Respondent was still working on the project as he had paid a bill three weeks prior to the hearing and had called for an inspection. Mr. Holguin admitted that Respondent performed no work on the garage after the directive was issued and did not complete the house by the deadline in the directive.

Administrative notice is taken of Respondent’s prior License record on June 20, 2024. Such prior License record reflects that Respondent’s License No. 327413 was first issued on January 16, 2020, and is active. Such prior License record also reflects that there were three open complaints, one resolved/settled complaint, and two complaints resulting in discipline 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 submitted a bid for Complainant’s projects and did not perform the work in the bids. Accordingly, Complainant established that Respondent abandoned the contracts and failed to complete the projects in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1)..

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 did not 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. 327413 for a period of five days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance 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.

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, June 20, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Skylight Construction LLC

[email redacted]

Mike Wiskow

[email redacted]

Martha Latorre

[email redacted]

By: OAH Staff