ALJDEC - Licensing

2024A-04641-CHC-ROC · Registrar of Contractors · 2024-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Antonio Martinez ,

COMPLAINANT

v.

HIGH PERFORMANCE HOMES INC.

DBA: High Performance Homes

License No. ROC 339538,

RESPONDENT

No. 2024A-04641-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 14, 2024

APPEARANCES: Antonio Martinez appeared on his own behalf. Malek Adel and Dave Nester appeared on behalf of High Performance Homes Inc.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

High Performance Homes Inc. (Respondent) is the holder of License No. 339538 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 5, 2023, Antonio Martinez (Complainant) entered into a contract with Respondent for the purchase and installation of new windows.

On or about April 22, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Todd Anderson. After a jobsite inspection, Investigator Anderson issued a written directive to Respondent 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 May 28th, 2024.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - 3 months of coming home to standing water on my floor, paint flaking from water, and no one coming out to fix the leak for just

shy of 3 months. Had to take up wood floor myself and clean away soaked

planks. still need paint on windowsill.

Investigator’s Observation: The wood flooring was replaced by the homeowner prior to Jobsite Inspection so I was unable to verify any damages to the original flooring (Modification); however, I was able to verify that the contractor still needed to come back to repaint the (4) window sills around the windows which were re-sealed by the contractor as part of warranty work: Two located downstairs on the south-east side of the residence, one westfacing Dining Room window, and a 4th located upstairs on the south-east side of the residence. Contractor should repaint those window sills to match the surrounding areas as closely as possible.

After the deadline in the directive expired, Investigator Anderson was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Anderson testified consistently with his written directive. He further testified that he reached out to Complainant on May 29, 2024 who advised that Respondent had not reached out to Complainant and no one had come to his house. He further testified that no extensions on the written directive were given nor requested.

Complainant testified that he had issues with the windows starting in December 2023. He had tried to have Respondent come to remedy the situation sooner rather than later. Respondent finally came on March 14, 2024 to add sealant to the windows and came on June 22, 2024 to paint.

Malek Adel, head of legal for Respondent, testified that the Registrar did not have the updated email information for Respondent. She further testified that the written directive was mailed, but never brought to her attention. She was first made aware of the Complaint via the Citation and that was the delay in getting the issues in the written directive addressed.

Dave Nester, director of window siding and paint, testified on behalf of Respondent. He stated that once Respondent received the Complaint, it was addressed right away and the painting was completed.

Administrative notice is taken of Respondent’s prior License record on August 22, 2024. Such prior License record reflects that Respondent’s License No. 339538 was first issued on July 20, 2022, and is currently suspended. Such prior License record also reflects that there was only this open complaint and no prior complaints 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.”

The evidence 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 workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent completed the corrective work after the deadline in the written directive had expired. Although the testimony was that the written directive was mailed but not brought to Ms. Adel’s attention, the Registrar followed all the proper protocol to notify Respondent of the events occurring. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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 No. 339538 for a period of 2 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty 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 Ariz. Rev. Stat. § 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, August 29, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff