ALJDEC - Licensing
2024A-05836-CHC-ROC · Registrar of Contractors · 2025-01-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lori Tope,
COMPLAINANT,
v.
Martin Construction & Remodeling, LLC
License No. ROC 217154,
RESPONDENT.
No. 2024A-05836-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 31, 2024
APPEARANCES: Complainant Lori Tope appeared on her own behalf. Hannah Durrett, Esq. represented Respondent Martin Construction & Remodeling, LLC. Kenny Martin and Mario Noriega appeared as witnesses for Respondent Martin Construction & Remodeling, LLC. Arizona Registrar of Contractors Investigator Miles Crosby appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice was taken of the Agency Record.
FINDINGS OF FACT
Martin Construction & Remodeling, LLC (“Respondent”) is the holder of License Number 217154, Specialty Dual CR-61 Carpentry, Remodeling and Repairs, issued by the Arizona Registrar of Contractors (“Registrar”). This license class is for projects of $50,000.00 or less including labor and materials, and allows the licensee to perform all general remodeling, additions, replacements, and repairs to existing structures. However, work related to electrical, plumbing, air conditioning systems, and boilers must be subcontracted to an appropriately licensed contractor. Kenny Martin is Respondent’s Qualifying Party and sole Member.
On or about November 19, 2021, Lori Tope (“Complainant” or “Ms. Tope”) contracted with Respondent for the remodel of her home.
On or about May 17, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Jack Grimm. After a July 10, 2024 Jobsite Inspection, Investigator Grimm issued a Written Directive to Respondent, dated July 17, 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 Wednesday, August 21, 2024.
You are directed to remedy the following violations by the appropriate means:
Complaint Item #1: Abandonment, Failure duty to perform. Received 1⁄2 of the money before work started. Received another payment of $15,000 to be deposited directly into his bank account, never came back.
Investigators Observation: This project has an Estimate/Proposal dated 8-9-21 including but not limited to work for demo, structure work, electrical, plumbing, drywall repairs, new interior doors, trim, kitchen and vanity cabinets, vanity and kitchen tops, paint, installation of fixtures and flooring. Most of this work appears incomplete in different stages or not started yet. Respondent has not been on site working for almost 2 years and has collected most of the funds. Respondent has performed work regarding structure alterations, plumbing and electrical. This work requires a local building code jurisdiction permit and any required inspections. No permit is in place and it is always the responsibility of the licensed contractor to verify a permit is in place prior to performing any work that requires a permit.
Martin Construction & Remodeling LLC has a current and active CR-61 Carpentry, remodeling and repairs license for project $50,000 and less. Work related to electrical, plumbing and HVAC must be subcontracted to appropriately licensed contractors. Property owner can ask to verify those subcontractors are appropriately licensed.
*Obtain the required permits from local code enforcement jurisdiction and obtain all required inspections and approvals. Complete project per estimate/proposal and any approved change orders, approved by both parties.
Note: Warning letters have been issued;
Minimum Elements of a Contract 32-1154(A)
Failure to obtain the required code jurisdiction permits. 32-1154(A)(2)
Out of Scope – Plumbing and Electrical 32-1154(A)(16)
The City of Phoenix has been notified that work is being performed at this location without a code compliance permit in place.
All errors in original.
After the expiration of the deadline in the Written Directive, Investigator Grimm ascertained that Respondent had not performed any work as directed.
Investigator Grimm referred 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)(1), A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158, A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).
Investigator Grimm subsequently retired from his service with the Registrar and the Complaint was re-assigned to Investigator Miles Crosby.
Investigator Crosby testified that the Registrar’s file contains many emails from the parties concerning the Statute of Limitations, an additional payment made to Respondent, as well as Respondent’s contention that Complainant terminated the contract with Respondent. However, Investigator Crosby testified that neither party submitted any documentation establishing their various contentions.
Investigator Crosby testified that a payment of $15,000.00 was made to Respondent in late April 2022, and such payment was made with the intent to have Respondent complete the project, and therefore, this matter falls with the two-year jurisdiction of the Registrar. Investigator Crosby opined that it was reasonable for Complainant to believe that Respondent would return to the project to perform its scope of work after receiving additional monies to do so.
Investigator Crosby further testified that after the issuance of the Written Directive, Respondent contacted Investigator Grimm inquiring as to how to “move forward.” Investigator Grimm advised Respondent to complete the project by the deadline in the Written Directive, and that Respondent would first need to obtain a permit to do so. Investigator Crosby testified that there was no documentation provided by Respondent regarding a denial of access, and in fact, there was a lock box with a key provided to Respondent for access to the property. Consequently, work could have continued on the project with or out without contact with Complainant.
Investigator Crosby further testified that Respondent did not provide any documentation regarding its allegation that Complainant terminated Respondent. Respondent accepted $15,000.00 and performed no additional work. Investigator Crosby testified based upon his review of the Jobsite Inspection Notes, Written Directive, and photographs, that the majority of the work was not completed notwithstanding that Respondent had been paid the majority of the contract price.
Investigator Crosby testified that Respondent did not obtain a permit for the project, and therefore, inspections were not performed. Respondent did not provide a written contract to Complainant, having only provided an estimate. Further, Respondent performed work outside the scope of its license, specifically, plumbing and electrical work. Investigator Crosby explained that because Respondent performed new electrical and plumbing work, including running new lines, such work was outside the scope of Respondent’s license.
Ms. Tope agreed with Investigator Crosby’s testimony. Ms. Tope testified that she went through a list of every incomplete item with Investigator Grimm and that on August 22, 2024, Respondent sent a text message of an itemized list of what work had been completed. Ms. Tope testified that Respondent’s list indicated that $36,137.50 worth of work was completed, with an outstanding balance of $15,720.00. This would bring the contract price to $51,857.50, beyond the $50,000.00 limit of Respondent’s license, and beyond the contract price. There were no change orders for the project.
Ms. Tope had paid Respondent a deposit in the amount of $22,500.00, and then her 91 year-old father paid Respondent $15,000.00 on April 29, 2022, on her behalf, for a total amount paid of $37,500.00. Ms. Tope’s parents were planning on moving into the home with her.
Ms. Tope hired an attorney to send a demand letter to Respondent in December 2022, with the hope that Respondent would complete the project. Ms. Tope testified that the lock box remained on the property until December 2024.
Mario Noriega, Respondent’s “right hand man,” who did not perform any work on the project, testified that he overheard Ms. Tope state that she was terminating her contract with Respondent and “going to California.” Mr. Noriega further testified that he overheard Ms. Tope state that she “did not want anyone else in the house” and that she took the key from the lock box in April 2022. Mr. Noriega testified that he was present when Ms. Tope physically removed the lock box. However, Ms. Tope credibly clarified that there were two lock boxes, one on a hose bib, and another on the house, and that the lock box for Respondent’s use remained on the home until December 2024.
Kenny Martin testified that 60%-65% of the work is complete. Yet, Respondent was paid $37,500.00 toward the $44,000.00 contract. Mr. Martin testified that in April 2022, Ms. Tope’s mother was ill and she had to go to California to care for her. Mr. Martin testified that Ms. Tope said, “You’re done,” and took the key out of the lock box. Respondent received the demand letter in December 2022, however, asserted that Ms. Tope did not request that the work be completed and that she did not communicate with him.
Mr. Martin further testified that notwithstanding that the Written Directive required Respondent to complete the project, he believed that Respondent could not go back to the jobsite. However, Mr. Martin also acknowledged that he never attempted to contact Ms. Tope during the period of the Written Directive because he “did not feel that it would be a positive interaction.”
Mr. Martin believes “all work is done to code,” however, he acknowledges that Respondent did not obtain a permit or schedule inspections by the building official.
Mr. Martin admitted that Ms. Tope’s father made a $15,000.00 progress payment on behalf of Ms. Tope. Mr. Martin testified that after he received the payment, Ms. Tope did not allow Respondent back on the property and that he “never heard from her again.” Mr. Martin contended that he “did not know when or if he would proceed.” Mr. Martin asserted that he was fired and Ms. Tope took the key. However, Respondent failed to present any credible evidence establishing such affirmative defense.
The Administrative Law Judge finds both Mr. Martin’s and Mr. Noriega’s testimony not to be credible and to be self-serving. Moreover, the Administrative Law Judge finds Respondent’s assertions that Ms. Tope fired Respondent and would not allow Respondent back to the property immediately after her father paid an additional $15,000.00 toward the contract price, not to be credible. The credible evidence of record established that Respondent had unfettered access to the property until December 2024. Furthermore, the Administrative Law Judge finds that it was reasonable and justified for Ms. Tope to believe that after Respondent received the $15,000.00 payment on April 29, 2022, that Respondent would return to the property at some point thereafter to complete its scope of work.
Administrative notice is taken of Respondent’s prior License record on January 10, 2025. Such prior License record reflects that Respondent’s License Number 217154 was first issued on February 24, 2006, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no 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.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
A.R.S. § 32-1155(A) specifies that a “complaint must be filed within the statute of limitations prescribed by 32-1162.”
A.R.S. § 32-1162 provides:
A. A person may file a written complaint pursuant to section 32-1155 with the registrar alleging a licensee has committed a violation of this chapter. The complaint must be filed:
1. For new home builds or other new building construction, within two years after the earlier of the close of escrow or actual occupancy.
2. For all other projects, within two years after the completion of the specific project.
In this case, this was not a new build, but rather the remodel of an existing home. Consequently, Ms. Tope was required to file a complaint with the Registrar within two years “after completion of the specific project.” This project was not complete. In fact the evidence established that it was far from complete. Therefore, the Complaint was timely filed.
The evidence of record established that Respondent abandoned its contract with Ms. Tope or refused to perform after submitting a bid on work, without legal excuse for the abandonment or refusal. Therefore, Ms. Tope established that Respondent violated A.R.S. § 32-1154(A)(1).
The evidence of record established that Respondent failed to obtain a permit for the project and failed to have required inspections performed by the local building official. Therefore, Ms. Tope established that Respondent violated A.R.S. § 32-1154(A)(2)(a).
The evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Ms. Tope 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 of record established that Respondent did not provide a written contract for the project to Ms. Tope. Therefore, Ms. Tope established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).
The evidence of record established that Respondent contracted for and performed electrical and plumbing work on the project which is beyond the scope of its license. Therefore, Ms. Tope established that Respondent violated A.R.S. § 32-1154(A)(16).
The evidence of record 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, Ms. Tope 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 217154 for a period of fourteen (14) 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.
It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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 15, 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]
Hannah K. Durrett, Esq.
[email redacted]
Lori Tope
[email redacted]
Miles Crosby
[email redacted]
By: OAH Staff