ALJDEC - Licensing
2024A-02467-CHC-ROC · Registrar of Contractors · 2024-09-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Wendell Fielder ,
COMPLAINANT
v.
Edgewater Design Company LLC
License No. ROC 312050,
RESPONDENT
No. 2024A-02467-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 21, 2024.
APPEARANCES:
For Complainant: Laurence Felder and Wendell Fielder.
For Respondent: Marcus Tappe and Matt Palmer.
For the Registrar of Contractors: Investigator Patricia Schuette.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1 through 13. Respondent’s Exhibits A through C.
_____________________________________________________________________
FINDINGS OF FACT
Edgewater Design Company LLC (Respondent) was the holder of License No. 312050 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 12, 2022, Wendell Fielder (Complainant) entered into a contract with Respondent for, among other things, an exterior remodel.
On or about October 2023, Respondent stopped working on the project.
On or about March 1, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent abandoned the project. Complainant claimed that Respondent had not done any work since around October 2023.
The Registrar assigned the complaint to Investigator Patricia Schuette, who issued an allegation letter on March 8, 2024. Respondent did not respond, so Investigator Schuette issued a Jobsite Inspection Notice on March 26, 2024, scheduling the inspection for April 11, 2024.
On or around March 20, 2024, windows were delivered to the property.
Investigator Schuette conducted the jobsite inspection on April 11, 2024, and Respondent was not present. Following the inspection, Investigator Schuette issued a Written Directive From the Registrar to Respondent on April 19, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: - Contractor abandoned project after installation of only foundation and four unfinished walls.
Investigator’s Observation: Verified. Sewer rough, foundation, and wall framing has been installed. No City inspections called to date. Windows and sliding door were delivered to the jobsite; however, a few are not correct size and one of the openings framed wrong size. Respondent to correct and complete within appropriate means.
Governing Rule: ARS §32-1154 (A) (1) Abandonment.
Investigator Schuette provided the Directive to Respondent by mail and email. The email contained a link, which was accessed four times before April 30, 2024.
The Directive required Respondent to notify Investigator Schuette of Respondent’s compliance with the directive prior to 5:00 p.m. on May 7, 2024.
On May 13, 2024, Complainant informed Investigator Schuette that no corrective work had been performed on the project.
On May 24, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(22).
Respondent submitted an Answer to the Citation on June 7, 2024. Respondent’s Answer stated that Respondent did not abandon the project and Respondent was not aware of the Directive time period.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On June 20, 2024, the Registrar issued a Notice of Hearing on Contested Case, setting the hearing at August 8, 2024 at 9:00 AM.
On August 7, 2024, at approximately 4:40 PM, Respondent requested a continuance. At the time set for hearing on August 8, 2024, the parties set forth their positions. No undue prejudice appearing, the Tribunal granted the continuance.
On or about August 9, 2024, the parties were notified the hearing was continued to August 21, 2024, at 1:00 PM. The order granting the continuance 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 August 21, 2024.
Investigator Schuette testified that Respondent was known to have notice issues, so she sent and monitored the Directive link, which was accessed four times. She testified that many of the windows clearly would not fit and that measurements were not required to make that determination.
Complainant testified that no work was done after October 2023. The windows and doors that were delivered in March 2024 were not the right products for Complainant’s project. While Complainant was supposed to have opening windows and a French door, the windows delivered did not open and the door was a sliding door.
Respondent blamed bad employees for the company’s failures.
Respondent blamed notice failures. Respondent claimed that it did not check the physical address of record frequently. Respondent claimed that the email address of record belonged to another person, who happened to be the Qualifying Party.
Respondent argued that it did not abandon the project. Respondent argued that it delivered product to the site, and it was waiting on other products that it had ordered. However, the products, which Respondent had known for months that they would need, were not ordered until after the complaint was filed.
Respondent argued that it did not have sufficient notice of workmanship issues that were identified in the Directive. However, workmanship was not at issue in this matter.
Respondent argued that the Directive period was insufficient to complete the project.
Respondent did not do any corrective work on the project, and Investigator Schuette testified that if she had seen progress that she would have granted an extension.
Administrative notice was taken of Respondent’s prior License record on September 9, 2024. According to that record, Respondent’s License No. 312050 was first issued on March 7, 2017; it was suspended on August 15, 2024, for lack of qualifying party. There were no other open complaints and one complaint resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent was deemed to have received the Directive by methods reasonably calculated to effect notice. The Registrar mailed and emailed copies of the Directive to Respondent at its address and email address of record. Furthermore, the preponderance of the evidence supports that Respondent timely received the Directive.
Respondent’s suspended 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. Respondent bears the burden of proof to establish an affirmative defense 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.”
In a disciplinary proceeding, a contractor cannot overcome its failures by blaming its employees or its management.
Accomplishing a minimal task does not overcome a complaint for abandonment. This is especially true when a prolonged period of time passed with no work accomplished and the minimal task completed occurs after the complaint is filed.
The preponderance of the evidence established that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).
The evidence 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 for 5 days Respondent’s License No. 312050.
It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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, September 10, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Patricia Schuette
[email redacted]
Righi Fitch Law Group, P.L.L.C.
[email redacted]
[email redacted]
Lawrence J. Felder
Resolvere Law PLLC
[email redacted]
[email redacted]
By: OAH Staff