ALJDEC - Licensing

2024A-05838-CHC-ROC · Registrar of Contractors · 2024-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Milan Kesic

COMPLAINANT,

v.

Jeno's Electric LLC

License No. ROC 252940,

RESPONDENT.

No. 2024A-05838-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 5, 2024

APPEARANCES: Milan Kesic (Complainant) represented himself. Lawrence Felder, Esq. represented Jeno’s Electric, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Exhibit A, the Registrar’s Notice of Hearing and Hearing Packet.

_____________________________________________________________________

FINDINGS OF FACT

1. On or about June 8, 2023, Complainant and Respondent entered into a residential construction project wherein, Respondent would perform all electrical work for Complainant’s new home for the amount of $173,025.60.

2. Respondent’s qualifying party is Dzenan Ahmetovic.

3. Respondent paid Complainant $69,210.24 pursuant to the contract.

4. On or about May 21, 2024, the Registrar received a complaint alleging abandonment on the part of Respondent.

5. The Registrar assigned the complaint to one of its investigators, Mark Nipp, (Investigator Nipp).

6. On or about June 13, 2024, Investigator Nipp conducted a job-site inspection. Investigator Nipp verified that Respondent performed electrical work in the gymnasium. However, Respondent did not perform work on any other part of the home.

7. On or about June 13, 2024, the Registrar issued a Directive to Respondent requiring that Respondent correct the following complaint item, by appropriate means, no later than July 1, 2024:

Complaint Item #1: Company was hired to do all electrical work in new home build and was paid $69k to buy material. Contractor now says he doesn’t have manpower to do the job and does not have the money to return back.

Investigator’s Observation: Verified Both parties agreed that the only work that had be done was the rough in electrical for the gymnasium (P2-4). The Respondent also stated that he has spent the money and does not have enough workers to complete the project. I saw that the only electrical work that had been completed was the gymnasium. I walked the entire project and noted there was no other electrical installed nor any readily visible components on site. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 2-13

Governing Rule: A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

8. The Registrar issued a Citation against Respondent’s license alleging that he violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1),(3), and (22); Arizona Administrative Code (A.A.C.) R4-9-108(B).

9. Respondent filed a timely answer to the Citation.

10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

11. A hearing was held on September 5, 2024.

12. At hearing, Complainant testified on behalf of himself. Mr. Ahmetovic testified on behalf of Respondent. Investigator Nipp testified regarding his investigation of the complaint.

13. Complainant explained that Respondent did not complete the electrical work on his home. Complainant stated that Mr. Ahmetovic only worked one day on the project. Complainant paid Respondent a check for almost $70,000 for project materials.

14. Mr. Ahmetovic explained that he did not have sufficient manpower to complete the project. Mr. Ahmetovic stated that he underwent surgery on his mouth three times. Mr. Ahmetovic disputed that he only worked one day on the project.

Mr. Ahmetovic stated that he worked two days on the project during April or May of 2024. Mr. Ahmetovic also stated that it was too dangerous to work due to scaffolding on the project. Mr. Ahmetovic never returned to do additional work. Mr. Ahmetovic stated that the basement was not ready for him to perform corrective work under the Directive. Mr. Ahmetovic stated that the basement had steps but no rail. Mr. Mr. Ahmetovic stated that most of the house was framed but it was not completely done.

15. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on September 24, 2024, Respondent’s license was first issued on February 24, 2009, and is active. Such prior License record also shows that there is only one open complaint against Respondent and no other disciplinary history. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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).

The Administrative Law Judge may consider the Registrar’s administrative

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

The preponderance of the evidence shows that Respondent did not work

diligently to complete the project. Although Mr. Ahmetovic alleged that the conditions were not safe to perform work, Mr. Ahmetovic provided no evidence that he relayed those concerns to Complainant. Furthermore, Mr. Ahmetovic testified that he lacked a sufficient amount of staff to complete the project despite accepting a check from Complainant for almost $70,000. The preponderance of the evidence shows that Respondent failed to perform work within professional industry standards which is a violation of A.A.C. R4-9-108(B), and thereby of A.R.S. § 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent abandoned the

contract, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(1).

6. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 252940 issued to Jeno's Electric LLC

LLC, for two days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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. section 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, September 25, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Milan Kesic

[email redacted]

Lawrence Felder, Esq.

Resolvere Law, P.L.C. [email redacted]

By: OAH Staff