ALJDEC decisions subject to certification as final

2024A-00826-OMC-LS-ROC · Registrar of Contractors · 2024-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Tri-City Earthworks & Labor LLC

DBA: Tri-City Home Improvement Pros

License No. ROC 330423 and 317806

RESPONDENT

No. 2024A-00826-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2024

APPEARANCES: Assistant Attorney General Charles S. Hover III appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Robert Sterling, James Dimond, and Daniel Otero as witnesses. No appearance(s) by or on behalf of Tri-City Earthworks & Labor LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-18 and 20-35 were admitted into evidence.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website as of March 13, 2024, According to the Registrar’s website, on January 24, 2018, Respondent was issued ROC License No 317806 for Specialty Dual CR-21 Hardscaping and Irrigation Systems. The license was suspended effective January 24, 2024. Further, on August 28, 2020, Respondent was issued ROC License No 330423 for General Residential B General Residential Contractor. That license was also suspended effective January 24, 2024. Robert Joseph Dixon Jr. was listed on both licenses as its Qualifying Party and Signor. There are 24 open complaints against the licenses, which are presumed to be related to this matter. The licenses had been disciplined on six prior occasions.

On January 24, 2024, an Order of Summary Suspension was issued against Respondent after the Registrar received dozens of complaints against Respondent’s licenses between December 16, 2023 through January 16, 2024 alleging poor workmanship and abandonment of contract. The Order set forth facts supporting the Registrar’s summary suspension regarding complaints received by 19 homeowners.

Upon investigation, the Registrar substantiated all complaints regarding abandonment of contract and workmanship issues. Given the circumstances, the Registrar determined that the public health, safety or welfare, imperatively required emergency action under Ariz. Rev. Stat. § 41-1092.11(B).

On January 24, 2024, the Registrar set the hearing for February 27, 2024, before the Office of Administrative Hearings (“OAH”), an independent state agency, located in Phoenix, Arizona. The Order was mailed to Respondent’s address of record via certified mail. The correspondence was not returned by the United States Postal Service as refused or undeliverable.

An evidentiary hearing was held per the Order to determine whether cause exists to uphold the summary suspension of Respondent’s license, and whether grounds exist for the Registrar to revoke Respondent’s licenses based on the following alleged violations:

Charge 1: Abandonment of a Contract without Legal Excuse (Ariz. Rev. Stat. § 32-1154(A)(1)

Charge 2: Minimum Workmanship Standards (Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108)

The Registrar submitted 34 exhibits and presented the testimonies of Robert Sterling and Registrar Investigators James Dimond (“Investigator Dimond”), and Daniel Otero (“Investigator Otero”). The Registrar’s agency record was also admitted as its own exhibit.

Although the start of the duly noticed hearing was delayed approximately ten minutes to allow Respondent additional time, Respondent did not appear on his own behalf, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed, nor did Respondent request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Hearing Evidence

Homeowner Complaints

Michelle Key (Case No. 2023-14309)

On December 16, 2023, the Registrar received a Complaint, submitted by Michelle Key, against Respondent’s License No. 330423. The Complaint alleged abandonment and poor work regarding a home remodel contract entered into on May 4, 2021, in the amount of $85,610.00, which work was to be performed at the Key residence in Skull Valley, Arizona. The contract indicated the total amount of the project was over $111,000. Ms. Key paid Respondent tens of thousands of dollars for the work. On January 19, 2024, the Registrar conducted a jobsite inspection (hereinafter “JSI”) of the work.

Investigator Dimond testified that Respondent did not attend the JSI and on January 22, 2024, the Registrar substantiated allegations of abandonment and poor work, and issued a written directive to Respondent. Investigator Dimond testified further that Respondent failed to comply with the written directive.

Finally, Investigator Dimon testified that Respondent posed a threat to the public health, welfare and safety, as in this case, the roof overhang on the front porch was not properly completed and could have collapsed.

James Maiorana (Case No. 2024-00272)

On January 8, 2024, the Registrar received a Complaint, submitted by James Maiorana against Respondent’s License No. 330423. The Complaint alleged abandonment of a construction contract entered into on June 13, 2023, for $12,945 for work on property in Prescott, Arizona. Mr. Maiorana paid Respondent over $8,000 for the work. On February 5, 2024, the Registrar conducted a JSI.

On February 7, 2024, the Registrar substantiated the complaint of abandonment and issued a written directive to Respondent.

Investigator Otero testified that he spoke with the homeowner who informed him that no work had been completed on the directive.

Jennifer Buxman (Case No. 2024-00350)

On January 10, 2024, the Registrar received a Complaint, submitted by Jennifer Buxman, against Respondent’s License No. 330423. The Complaint alleged abandonment of a construction contract entered into on December 11, 2023, in the amount of $1,560, for work on the Buxman residence in Prescott Valley, Arizona. Ms. Buxman paid Respondent over $700 for the work.

On or about February 7, 2024, the Registrar conducted a JSI of the project and substantiated the allegations of abandonment, and issued Respondent a written directive.

Investigator Otero testified that he spoke with the homeowner who informed him that no work had been completed on the directive.

Bruce Richardson (Case No. 2024-00361)

17. On January 10, 2024, the Registrar received a Complaint, submitted by Bruce Richardson, against Respondent’s License No. 330432. The Complaint alleged abandonment of a construction contract entered into on November 9, 2023, in the amount of $8,517.51, for work to be performed at the Richardson’s residence in Prescott, Arizona. Mr. Richards paid Respondent over $1,500 for the flooring work.

On or about February 7, 2024, the Registrar substantiated the allegations of abandonment, and issued a written directive to Respondent.

Investigator Otero testified that he spoke with the homeowner who informed him that no work had been completed on the directive.

Donald Brimhall (Case No. 2024-00362)

On January 10, 2024, the Registrar received a Complaint, submitted by Donald Brimhall, against Respondent’s License No. 330423. The Complaint alleged abandonment of a construction contract entered into on December 22, 2023, in the amount of $14,103.67, for work to be performed at the Brimhall residence in Prescott, Arizona. Brimhall paid Respondent over $11,000 for the work.

On or about February 7, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

Investigator Otero testified that he spoke with the homeowner who informed him that no work had been completed on the directive.

Kevin and Terese Mack (Case No. 2024-00364)

On January 10, 2024, the Registrar received a Complaint, submitted by Kevin and Terese Mack, against Respondent’s License No. 330423. The Complaint alleged abandonment of a bath remodel contract entered into on November 9, 2023, in the amount of $12,405.14, for work to be performed at the Mack residence in Mayer, Arizona. The Macks paid Respondent over $8,000 for the remodel work.

On or about February 7, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

Investigator Otero testified that he spoke with the homeowners who informed him that no work had been completed on the directive as of February 26, 2024.

Lindsey Arrey (Case No. 2024-00379)

On January 10, 2024, the Registrar received a Complaint, submitted by Lindsey Arrey, against Respondent’s License No. 330423. The Complaint alleged abandonment and poor work regarding a bath remodel contract entered into on February 28, 2023, in the amount of $15,845, for work to be performed at the Arrey residence in Prescott, Arizona. Ms. Arrey paid Respondent over $13,000 for the work.

On or about February 12, 2024, the Registrar verified the allegations of poor work and abandonment, and issued Respondent a written directive.

Investigator Otero testified that he spoke with the homeowners who informed him that no work had been completed on the directive as of February 26, 2024, however the directive did not expire until March 4, 2024.

Robert Peters (Case No. 2024-00403)

On January 11, 2024, the Registrar received a Complaint, submitted by Robert Peters, against Respondent’s License No. 330423. The Complaint alleged abandonment of a deck repair or replacement contract entered into on October 4, 2023, in the amount of $12,070.00, for work to be performed at the Peters residence in Prescott, Arizona. Mr. Peters paid Respondent $6,300 for the work.

30. On or about February 7, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

31. Investigator Otero testified that he spoke with the homeowners who informed him that no work had been completed on the directive as of February 26, 2024.

Ronald Honnold (Case No. 2024-00427)

32. On January 11, 2024, the Registrar received a Complaint, submitted by Ronald Honnold, against Respondent’s License No. 330423. The Complaint alleged abandonment of a deck repair contract entered into on November 21, 2023, in the amount of $882.00 which was to be completed at the Honnold residence in Prescott, Arizona. Mr. Honnold paid Respondent $441.00 for the work.

33. On or about February 12, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

34. Investigator Otero testified that the directive did not expire until March 4, 2024.

Michael Squire (Case No. 2024-00432)

35. On January 11, 2024, the Registrar received a Complaint, submitted by Michael Squire, against Respondent’s License No. 330423. The Complaint alleged abandonment of two bath remodel contracts entered into on or about December 1, 2023, in the amount of $35,522.64 to be performed at the Squire residence in Prescott, Arizona. Mr. Squire paid thousands of dollars to the Respondent.

36. On or about February 13, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

37. Investigator Otero testified that the directive did not expire until March 4, 2024.

Craig Johnston (Case No. 2024-00432)

38. On January 12, 2024, the Registrar received a Complaint, submitted by Craig Johnston, against Respondent’s License No. 330423. The Complaint alleged abandonment of a construction contract entered into on November 27, 2023, in the amount of $9,310.50, which was to be performed at the Johnston residence in Chino Valley, Arizona. Mr. Johnston paid Respondent over $9,000 for the work.

39. On or about February 13, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

40. Investigator Otero testified that the directive did not expire until March 5, 2024.

Sean Nellis (Case No. 2024-00462)

41. On January 12, 2024, the Registrar received a Complaint, submitted by Sean Nellis, against Respondent’s License No. 330423. The Complaint alleged abandonment of a construction contract entered into on January 8, 2023, in the amount of $39,980, which was to be performed at the Nellis residence in Prescott Valley, Arizona. Nellis paid Respondent over $20,000 for the work.

42. Investigator Otero testified that a written directive was issued on February 16, 2024, and will expire on March 15, 2024.

Jonathan Davenport (Case No. 2024-00755)

43. On January 19, 2024, the Registrar received a Complaint, submitted by Jonathan Davenport, against Respondent’s License No. 330423. The Complaint alleged abandonment and poor work of a home remodel contract entered into on September 22, 2023, in the amount of $8,770, which was to be performed at the Davenport residence in Prescott, Arizona. Davenport paid Respondent over $5,800 for the work.

44. Investigator Otero testified that a JSI had not been completed as Complainant was out of town.

Tammy Brisbois (Case No. 2024-00185)

45. On January 6, 2024, the Registrar received a Complaint, submitted by Tammy Brisbois, against Respondent’s License No. 317806. The Complaint alleged abandonment of a contract to build a structure entered into on September 27, 2023, in the amount of $8,950, which was to be performed on the Brisbois residence in Prescott, Arizona. Brisbois paid Respondent $8,950 for the work. On or about February 2, 2024, the Registrar conducted a JSI.

46. On or about February 7, 2024, the Registrar verified the allegations of abandonment, and issued Respondent a written directive.

47. Investigator Otero testified that he spoke with the homeowner who informed him that no work had been completed on the directive.

Luca Paindelli (Case No. 2024-00457)

48. On January 12, 2024, the Registrar received a Complaint, submitted by Luca Paindelli, against Respondent’s License No. 317806. The Complaint alleged abandonment of a bath remodel contract entered into on September 5, 2023, in the amount of $8,834.26, which was to be performed at the Paindelli residence in Prescott, Arizona. Paindelli paid Respondent $4,664.26 for the work.

49. On or about February 13, 2024, the Registrar conducted a jobsite inspection, verified the allegations of abandonment, and issued Respondent a written directive.

50. Investigator Otero testified that the directive did not expire until March 5, 2024.

Randy Skidmore (Case No. 2024-00604)

51. On January 16, 2024, the Registrar received a Complaint, submitted by Randy Skidmore, against Respondent’s License No. 317806. The Complaint alleged abandonment of a porch construction contract entered into on June 19, 2023, in the amount of $26,680, which was to be performed at the Skidmore residence in Chino Valley, Arizona. Skidmore paid Respondent $13,340 for the work.

52. Investigator Otero testified that the he performed an inspection on February 26, 2024, and issued a directive as well.

53. Investigator Otero concluded his testimony be stating that based upon the above complaints, Respondent’s actions posed a threat to the public’s, health, welfare and safety and recommended that the summary suspensions on both licenses be affirmed.

CONCLUSIONS OF LAW

These matters lie within the Registrar’s jurisdiction, and was properly brought before OAH.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Neither the Notice of Hearing nor Supplemental Notice sent to Respondent were returned as undeliverable. Thus, Respondent is deemed to have received notice of the scheduled proceedings.

The Registrar bears the burden of proof to establish grounds for suspension or revocation of Respondent’s contractor’s license 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.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.A.C. R4-9-108(A): states, “[a] contractor shall perform all work in a professional and workmanlike manner.

Ariz. Rev. Stat. § 41-1092.11(B) provides, in pertinent part, that if an “[a]gency finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the agency may order summary suspension of a license pending proceedings for revocation or other action...”

The evidence in this matter is undisputed.

The record reflected that Respondent contracted with the above Complainants and tendered payments for Respondent’s services and/or materials, and Respondent did not complete any of the projects. Further, the work Respondent did perform on some of the projects fell below the Registrar’s minimum workmanship standards. It is further undisputed that Respondent failed to attend any of the jobsite inspections for the projects, and made no attempts to remediate the deficient work or complete any of the projects.

Therefore, the Registrar established violations of Ariz. Admin. Code R4-9-108 and Ariz. Rev. Stat. §§ 32-1154(A)(1), and 32-1154(A)(3).

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely and completely finish Complainants projects per their respective agreements. These are affirmative defenses that Respondent bears the burden to establish. In failing to appear for the duly noticed hearing, Respondent failed to provide evidence in mitigation, refute the Registrar’s evidence, or justify his inaction in this matter. Thus, Respondent’s burden has not been sustained.

Respondent’s pattern of taking payments on new contracts, while failing to fulfill existing contracts, jeopardizes public safety and welfare. Because Respondent failed to appear, no evidence was offered to establish an affirmative defense to the above-captioned conduct.

Therefore, based on the record, the Registrar has established more than ample cause to summarily suspend Respondent’s license under Ariz. Rev. Stat. § 41-1092.11(B).

The tribunal holds that suspension of Respondent’s contracting license pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(1), and 32-1154(A)(3); Ariz. Admin. Code R4-9-108, is appropriate and in the best interest of the public.

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that the Registrar’s Order of Summary Suspension of Respondent License Nos. 317806 and 330423, as issued on February 16, 2024, be affirmed.

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.

-54864001

001

-137160-45720000Done this day, March 13, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Charles S. Hover, III

[email redacted]

Tri-City Earthworks & Labor LLC

[email redacted]

By: OAH Staff