ALJDEC - Licensing
2024A-03585-CHC-ROC · Registrar of Contractors · 2024-10-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michel Mikhail,
COMPLAINANT,
v.
T & M Creations LLC
License No. ROC 211169,
RESPONDENT.
No. 2024A-03585-CHC-ROC
No. 2024A-03586-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on September 3, 2024.
APPEARANCES:
For Complainant: Michael Mikhail.
For Respondent: Lawrence Felder.
For the Registrar of Contractors: Investigator Gregory Kinsfather.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of Hearing Packets One (Notice of Hearing dated July 25, 2024) and Two (Notice of Hearing dated July 30, 2024) submitted by the Registrar of Contractors. Complainant’s Exhibits A1 through 9.
_____________________________________________________________________
FINDINGS OF FACT
T & M Creations LLC (Respondent) was the holder of License No. 211169 issued by the Arizona Registrar of Contractors (Registrar) on August 29, 2005.
On or about September 27, 2023, Michel Mikhail (Complainant) entered into a contract with Respondent for, among other things, construction of a multi-unit townhouse. On or about June 6, 2023, Michel Mikhail (Complainant) entered into a contract with Respondent for, among other things, construction of a multi-unit townhouse.
Respondent’s owner passed away on or around February 2, 2024.
On or about March 27, 2024, Complainant filed Licensed Complaint Forms with the Registrar, claiming abandonment and poor work for both projects.
The Registrar assigned the complaints to Investigator Gregory Kinsfather, who issued two Jobsite Inspection Notices on April 4, 2024, scheduling the inspections for April 8, 2024.
Investigator Kinsfather conducted the jobsite inspections on April 8, 2024, and Respondent was not present. Following the inspections, Investigator Kinsfather issued two Written Directives to Respondent on May 23, 2024.
The Written Directives required Respondent to notify Investigator Kinsfather of Respondent’s compliance with the directive prior to 5:00 p.m. on June 7, 2024.
On June 21 and June 24, 2024, the Registrar issued Citations against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(1) and 32-1154(A)(22).
Respondent timely submitted Answers to the Citations, denying the allegations.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On July 25, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing in Case No. 2024-03585 on September 3, 2024, at 1:00 PM. On July 30, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing in Case No. 2024-03586 on September 10, 2024, at 9:00 AM.
The hearing was held via Google Meet on September 3, 2024. At that time, the Parties agreed that the matters be consolidated and to conduct both hearings on September 3, 2024.
Investigator Kinsfather testified in support of his findings and that no work was done on the projects after the Written Directives were issued.
Administrative notice was taken of Respondent’s prior License record on September 26, 2024. According to that record, Respondent’s License No. 211169 was suspended on May 1, 2024. The license had two open and one disciplined case.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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.”
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 revoke Respondent’s License No. 211169.
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, October 1, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Michel Mikhail
[email redacted]
Lawrence J. Felder
Resolvere Law PLLC
[email redacted]
[email redacted]
By: OAH Staff