ALJDEC - Licensing

2024A-03929-CHC-ROC-RH · Registrar of Contractors · 2025-01-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth Vail,

COMPLAINANT,

v.

Classic Garage, Inc.

License No. ROC 240029,

RESPONDENT.

No. 2024A-03929-CHC-ROC-RH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 27, 2024

APPEARANCES: Complainant Elizabeth Vail appeared on her own behalf. Respondent Classic Garage, Inc. did not appear. Arizona Registrar of Contractors Investigator James Dimond was not present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Classic Garage, Inc. (“Respondent”) is the holder of License Number 240029 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about January 21, 2021, Elizabeth Vail contracted with Respondent for Respondent to install epoxy coating to her garage floor. The contract price was $3,825.00 and Ms. Vail has paid Respondent in full.

Ms. Vail testified that Respondent initially completed its work in March 2021. On May 3, 2021, Ms. Vail contacted Respondent because the epoxy was chipping.

On May 28, 2021, Respondent performed repairs to the chips in the flooring. Respondent performed additional repairs at some point thereafter and left epoxy product on site for Ms. Vail to perform repairs in the future.

Ms. Vail testified that on February 11, 2023, Respondent informed her that the material used on her floor was “bad material” and that many of the floors installed by Respondent were experiencing “issues.” Respondent informed Ms. Vail that Respondent was in the midst of a lawsuit with the manufacturer of the epoxy product used. Respondent would not schedule additional repairs.

On or about August 24, 2023, the Registrar received a Complaint against Respondent from Ms. Vail alleging poor work with respect to Respondent’s scope of work.

Ms. Vail testified that on or about August 29, 2023, Respondent contacted her, agreed to replace the flooring by the end of October 2023, and asked her to close the Complaint.

On or about August 30, 2023, Ms. Vail requested that the Registrar close the Complaint as agreed upon by the parties.

Respondent failed to perform the promised work and after months of excuses provided by Respondent, on or about March 28, 2024, Ms. Vail requested that the Registrar re-open the Complaint.

The Registrar assigned the Complaint to Investigator Jim Dimond. After a May 3, 2024 Jobsite Inspection which Respondent did not attend, Investigator Dimond issued a Written Directive to Respondent dated May 20, 2024, 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 Sunday, June 9, 2024.

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

Compliance Item: 1 - multiple areas of epoxy coating has chipped off

Investigator’s Observation: This is at the main house garage and the

complainant pointed out numerous small areas in which the surface has

delaminated and failed.

The respondent is to correct the condition in an appropriate manner.

The photographs that Investigator Dimond took during the Jobsite Inspection are contained in the Agency Record and depict the chipping of the epoxy coating.

Respondent did not perform the required corrective work. Consequently, Investigator Dimond forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), 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.

Ms. Vail testified that a hearing had previously been scheduled, however, neither party appeared. Consequently, a default Order was issued by the Registrar. Ms. Vail thereafter requested a rehearing which was granted by the Registrar, resulting in the instant proceeding.

The rehearing of this matter was scheduled to convene on December 27, 2024, at 1:00 p.m. On November 25, 2024, the Registrar issued the Notice of Hearing advising the parties of the hearing date and time, and that the Office of Administrative Hearings would issue Google Meet information for participation in the hearing. The Notice of Hearing was sent to Respondent’s mailing and email addresses of record with the Registrar.

Also, on November 25, 2024, the Tribunal issued to the parties an Order Setting Hearing Via Google Meet. That Order contained the Google Meet link to join the hearing by video or phone and was issued to the parties’ email addresses of record. Respondent did not appear for hearing through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

On the date and at the time set for hearing, Ms. Vail appeared on her own behalf with her husband, Wade Vail. Investigator Dimond was not present, having previously informed the parties and the Tribunal that he was unavailable on the scheduled hearing date. At the time of hearing, Ms. Vail chose to proceed to hearing without Investigator Dimond’s testimony, however, as is customary, Administrative Notice was taken of the Agency Record. Ms. Vail testified as set forth above and agreed with the findings of Investigator Dimond as set forth the Agency Record.

Ms. Vail testified that after the issuance of the Written Directive, Respondent sent an individual named Justin, to inspect the work. Respondent scheduled the repairs for August 19, 2024, well after the deadline specified in the Written Directive. However, prior to any repairs being performed, Respondent instructed Justin not to perform any repairs because a hearing had already been scheduled. Consequently, corrective work was never performed.

Administrative notice is taken of Respondent’s prior License record on January 7, 2025. Such prior License record reflects that Respondent’s License Number 240029 was first issued on November 25, 2007, and was voluntarily canceled on October 29, 2024. Such prior License record also reflects that there is the instant open Complaint, no resolved/settled complaints, and one complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

The credible and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive and that valid justification for such failure did not exist. 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 Number 240029 for a period of five (5) days.

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 (30) 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)(7), 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, January 9, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Elizabeth Vail

[email redacted]

Classic Garage, Inc.

[email redacted]

Jim Dimond

[email redacted]

By: OAH Staff