ALJDEC - Licensing

2024A-03975-CHC-ROC · Registrar of Contractors · 2024-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joan D Ferraris

COMPLAINANT,

Spectra Kitchen And Bath, LLC

License Nos. ROC 334702, 339939

RESPONDENT.

No. 2024A-03975-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 17, 2024

APPEARANCES: Joan D. Ferraris (Complainant) represented herself. No one appeared on behalf of Spectra Kitchen And Bath, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 4.

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FINDINGS OF FACT

1. On or about April 21, 2023, Complainant and Respondent entered into a contract wherein Respondent agreed to build a new home for Complainant for the amount of $104,378. Complainant paid Respondent $85,000 for the construction.

2. Respondent failed to perform construction work under the contract.

3. On or about April 5, 2024, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar of ROC) alleging abandonment on the part of Respondent.

4. On or about April 9, 2024, John Smith, an investigator for the ROC, inspected the construction job-site.

5. Investigator Smith observed that Respondent performed no work under the contract.

6. Investigator Smith referred the complaint to the ROC’s legal department for the issuance of a Citation.

7. On April 11, 2024, the ROC issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1).

8. A timely answer was received on behalf of Respondent. Respondent acknowledged through the answer that it had performed no work under the contract. Respondent notified the ROC that it had ceased operations and would be filing for bankruptcy.

9. The matter was referred to the Office of Administrative Hearings.

10. On or about May 14, the ROC issued a Notice of Hearing, setting a hearing at 9:00 a.m. on June 17, 2024. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record.

11. On or about June 7, 2024, a representative for Respondent contacted Investigator Smith and inquired regarding the reason for the hearing because Respondent did not contest the complaint.

12. A hearing was held on June 17, 2024.

13. At hearing, Complainant testified on behalf of herself and presented the testimony of Paul Weiner, the general contractor of Design Build Collaborative.

14. No one appeared on behalf of Respondent at the hearing. Respondent did not submit a request to appear telephonically, nor a motion for continuance. Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

15. At hearing, Investigator Smith testified consistently with his job-site inspection notes. Complainant asserted that she paid a down payment in the amount of $85,000, however, Respondent performed no work on her home. Mr. Weiner’s company subcontracted with Respondent to purchase and install materials in Complainant’s for the project. Mr. Weiner testified that Complainant paid $85,000 for the materials and labor to Respondent.

16. Administrative notice is taken of Respondent’s prior License record on July 8, 2024. Such prior License record reflects that Respondent’s License No. 334702 was first issued on September 2, 2021, and was revoked on May 23, 2024. Such prior License record also reflects that there are two open complaints against Respondent’s license and one complaint was resolved or withdrawn complaints that were resolved or withdrawn by the complainant after the issuance of a corrective work order or citation. Such prior License record also reflects that Respondent’s License No. 339939 was first issued on August 5, 2022, and was revoked on May 23, 2024. Such prior License record also reflects that the Registrar has not imposed discipline on License No. 339939.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

The Administrative Law Judge may consider the ROC’s administrative

record. See A.A.C. R4-9-118.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

Respondent’s administratively revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

The evidence established that Respondent agreed to build a new home for Complainant through a written contract, however, Respondent did not perform the any work listed in the contract. Accordingly, the preponderance of the evidence shows that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1). Furthermore,

Complainant established that she paid Respondent $85,000.00 toward the project and no work was completed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Nos. 334702 and 339939.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $85,500.00 as restitution pursuant to A.R.S. § 32-1156.01.

Done this day, June 17, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

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, July 8, 2024.