ALJDEC - Licensing
2024A-00820-CHC-ROC · Registrar of Contractors · 2024-08-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kyle McGauley,
COMPLAINANT
v.
Legacy Contracting LLC
License No. ROC 333553,
RESPONDENT
No. 2024A-00820-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 17, 2024
APPEARANCES: Complainant Kyle McGauley appeared on his own behalf. Respondent Legacy Contracting LLC 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 4.
_____________________________________________________________________
FINDINGS OF FACT
Legacy Contracting LLC (Respondent) is the holder of License No. 333553 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 10, 2023, Kyle McGauley (Complainant) entered into a contract with Respondent for the construction of a fence. The contract did not include Respondent’s license number, an estimated date of completion, or an advisement that Complainant had the right to file a complaint with the Registrar.
On or about January 22, 2024, 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.
During the jobsite inspection, Respondent acknowledged that it had hired unlicensed contractors to perform work on the project.
After the 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 Wednesday, March 13, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - There has been no work completed on the wall since 12/28/24
Investigator’s Observation: Confirmed. There has been no work done on the project since the footing was placed in December of 2023.
The Contractor should finish the project per plan and contract (oral or written) by appropriate means.
. . . .
Compliance Item: 2 - The fence footing was done improperly
Investigator’s Observation: Confirmed. Per a third party licensed contractor, the footing is not placed properly.
The footing should be placed properly per the local building authority.
Contractor should repair by appropriate means.
. . . .
Compliance Item: 3 - The project was started without a permit.
Investigator’s Observation: Confirmed. There was no permit information on site.
There should be a permit pulled for this project from the local building authority.
Contractor should obtain a permit from the local building authority and get all the necessary approval signatures required by the local building authority.
Following the issuance of the written directive, Respondent did not attempt to contact Complainant regarding the work to be performed. 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)(1); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(9); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; 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 May 31, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
On or about April 30, 2024, the Office of Administrative Hearings issued a Minute Entry Continuance to the parties setting the continued hearing to convene at 9:00 a.m. on July 17, 2024. The 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 July 17, 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 that during the jobsite inspection, Respondent acknowledged hiring a “couple guys” from North Dakota or South Dakota to work on the project. Investigator Wiskow indicated a permit was needed for the project and Respondent had never obtained one.
Complainant testified that he spoke to the workers who indicated they were from South Dakota and said Respondent found them on Craigslist at 3:00 a.m. on the day they reported to Complainant’s project. The individuals stated they had never worked for Respondent prior to that day and had no plans to work for Respondent after the project.
Administrative notice is taken of Respondent’s prior License record on August 6, 2024. Such prior License record reflects that Respondent’s License No. 333553 was first issued on June 2, 2021, and was revoked on July 1, 2024. Such prior License record also reflects that there were two open complaints, four resolved/settled complaints, and eight complaints resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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.
Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The evidence established that Respondent did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).
The evidence established that Respondent hired unlicensed persons to work on the project. Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(9).
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, the Registrar 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 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. 333553.
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, August 6, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Mike Wiskow
[email redacted]
Kyle McGauley
[email redacted]
Legacy Contracting LLC
[email redacted]
By: OAH Staff