ALJDEC - Licensing
2024A-06317-CHC-ROC · Registrar of Contractors · 2025-02-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Thomas Phelan,
COMPLAINANT,
v.
Brothers Group Business Corp
License No. ROC 337496,
RESPONDENT.
No. 2024A-06317-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 12, 2025
APPEARANCES: Complainant Thomas Phelan appeared on his own behalf. Severino Moya appeared on behalf of Respondent Brothers Group Business Corp. Arizona Registrar of Contractors Investigator Albert Bernal appeared as a witness. Interpreter Mark Canas provided Spanish translation.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record
FINDINGS OF FACT
Brothers Group Business Corp (“Respondent”) is the holder of License Number 337496 issued by the Arizona Registrar of Contractors (“Registrar”). Severino Moya is Respondent’s Qualifying Party, Director, and President.
On or about September 5, 2023, Thomas Phelan (“Complainant”) and Valda Summers contracted with Respondent for the remodel of a condominium owned by Complainant and Ms. Summers. The contract price was $104,000.00. Complainant has paid Respondent in full, plus additional monies.
On or about June 20, 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 Albert Bernal. After a September 12, 2024 Jobsite Inspection, at which both parties were present, Investigator Bernal issued a Written Directive to Respondent, dated October 7, 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 Friday, November 1st, 2024.
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1A: Contractor failed to complete work specified in contract. Did not submit draws and received full payment
Investigator’s Observations: Verified.
As specified in subsequent complaint items, the respondent has not completed work per contract.
Complaint Item 3: Contractor broke window and charged it to owner and broke marble vanity and refuses to pay for these.
Investigator’s Observations: Verified.
Window shown to me was broken. It appears window was damaged by the Respondent while performing work in the area.
Complaint Item 6: Contractor failed to obtain permit or inspection for structural work which caused damage to unit above ours.
Investigator’s Observations: Verified.
This project included: modifying exterior load bearing walls, modifying plumbing modifying plumbing inside the walls, modifying electrical inside the walls, modifying interior walls. All of these require permits to be obtained prior to the work being performed.
All work on this project was performed without a permit being obtained.
Note: Damage to property owned by anyone other than the complainant may need to be listed on a separate complaint form filed be the owner of the affected property.
Complaint Item 14A: Contractor failed to install countertops and master shower tile and glass enclosure
Investigator’s Observations: Verified.
Countertop was installed in the master bathroom; however the right side area by sink was cracked. Respondent admitted that the countertop broke during installation.
*Respondent shall correct by appropriate means.
Complaint Item 14C: Contractor failed to install countertops and master shower tile and glass enclosure
Investigator’s Observations: Verified.
Master shower glass enclosure was not installed.
* Respondent shall complete project per original contract agreement.
Master Bedroom/Bathroom “Line item #20: enclose shower area with glass- one panel plus one door 30”
Complaint Item 16: Contractor failed to install closet systems in master bedroom, closet and guest bedroom
Investigator’s Observations: Verified. Closet system were not installed in the master bedroom closet. Respondent shall complete project per original contract agreement.
Garage/Master Bedroom closet: Line item #6 Installed closet storage/organizer system
Complaint Item 17: Contractor failed to change out exterior door locks
Investigator’s Observations: Verified. Locks shown to me on doors leading to the garage, patio, and front of the residence (exterior door), were not replaced as per contract. Respondent shall complete project per original contract agreement.
All rooms: Line item #6 Install digital locks on exterior door with Ring or other doorbell on front door.
Complaint Item 18: Contractor failed to install carpet in master and guest bedrooms
Investigator’s Observations: Verified. Carpet was not installed in these two rooms as per contract. Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturer’s installation instructions.
Master Bedroom/Bathroom: Line item #26 new carpet
Guest bedroom/Bathroom: Line 19 “Replace carpet but keep tile.
Complaint Item 20B: Contractor failed to set appliances, kitchen hood, kitchen sink, dishwasher and disposal, vanities,
Investigator’s Observations: Verified.
Range hood was on site but was not installed.
Kitchen Add two or three way switches. Line item #31: Install Stove hood.
*Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturer’s installation instructions.
Complaint Item 22: Contractor failed to install garage storage systems.
Added to this item: Walls were not painted in the garage. (Issue regarding garage paint will be addressed in this complaint item)
Investigator’s Observations:
1) Verified. Garage storage system was not installed.
Respondent shall complete project per original contract agreement, properly executed change orders.
Garage/Master Bedroom Closet: Line #12 install overhead storage organizer.
2) Verified. Walls were not painted in the garage. Respondent shall complete project per original contract agreement, properly executed change orders.
Garage/Master Bedroom Closet: Line item # 8 Paint walls and ceiling.
Complaint Item 27: Contractor failed to paint and/or patch exterior areas that were damaged.
Investigator’s Observations: Verified. Several stucco areas were repair due to the addition of electrical work such as electrical outlets etc. The stucco texture was repaired; however, the areas were not painted.
Respondent shall correct by appropriate means.
Complaint Item 41: Contractor failed to install exhaust fans in bathrooms and failed to
Investigator’s Observations: Verified. Exhaust fan was not installed in the powder room. Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturer’s installation instructions.
Powder room. Line item #12 new exhaust fan.
Complaint Item 42: Contractor failed to install toe kick lighting in bathrooms.
Investigator’s Observations: Verified. Toe kick lighting was not installed.
Respondent shall complete project per original contract agreement, properly executed change orders, and manufacturer’s installation instructions.
1) Master Bedroom/Bathroom. Line item #31: add toe-kick lighting in master bathroom.
2) Powder room. Line item #15: Add lighted toe kick.
Complaint Item 46: Beam is not welded. Two beams were added to the structure, stucco repairs needed.
Item was added to the complaint at the JSI and both parties agreed to inspect.
Investigator’s Observations: Verified.
Metal beams and post were added to the residence ceiling structure, and walls were removed/modified by this Respondent.
This is permit required work that was performed without a permit being obtained.
Exterior stucco has not been repaired.
ADDITIONAL VIOLATIONS
In addition to the allegations in the complaint, the following violations were verified:
Warning Letter: Performing permit required work without a permit being obtained.
Investigator’s Observations: This project included: modifying exterior load bearing walls, modifying plumbing modifying plumbing inside the walls, modifying electrical inside the walls, modifying interior walls. All of these require permits to be obtained prior to the work being performed.
All work on this project was performed without a permit being obtained.
REQUIRED CORRECTIVE ACTION: The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.
If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.
All errors in original.
Following the expiration of the Written Directive, Investigator Bernal ascertained that Respondent had not performed any work to comply with the Written Directive. Thereafter, Investigator Bernal forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(a) and (b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).
Investigator Bernal testified consistently with the findings contained in his Jobsite Inspection Notes and the Written Directive. Investigator Bernal testified that he verified fourteen of the forty-six items of Complaint. Investigator Bernal testified that during the Jobsite Inspection, Mr. Moya admitted to some of the deficiencies and “pushed back” on others. Investigator Bernal testified that he did not receive any communication from Respondent during the period of the Written Directive.
Investigator Bernal further testified regarding the Warning Letter he issued to Respondent. Investigator Bernal testified that he issued the Warning Letter because Respondent did not obtain the necessary permits for the project, as there were no permits obtained for the electrical, plumbing, or structural work.
Complainant concurred with Investigator Bernal’s testimony. Complainant testified that Respondent has been paid in full for the project, having paid $105,000.00 toward the $104,000.00 contract price. Complainant testified that he has experienced “fallout” from Respondent’s failure to obtain proper permitting for the project. Complainant testified that during the project, he was “one thousand miles away and relied on [Respondent].” Complainant acknowledged that he did not obtain HOA approval for the project, however, he testified that he specifically instructed Respondent that the project “needed to be done in compliance with Scottsdale code.”
Mr. Moya testified that Ms. Summers instructed him not to obtain a permit for the project because they had not received permission from the HOA. However, as a licensed contractor, Respondent is required to comply with the statutes and rules governing licensed contractors.
Mr. Moya further testified that Respondent stopped working on the project in April 2024, because Complainant would not agree to pay for Respondent’s work and Ms. Summers had verbally expanded the scope of work, instructing Respondent “to demolish everything.” Mr. Moya asserted that Complainant owes him $17,000.00 and because he believed he was owed additional monies, Respondent refused to perform the required corrective work.
During the hearing, Mr. Moya was fixated on the fact that Ms. Summers was not present for the hearing. Ms. Summers is not a named complainant, did not file the Complaint, and was not subpoenaed to testify. Therefore, her presence was not required at the hearing. Also during the hearing, Mr. Moya contended that Investigator Bernal was not being truthful about having taken photographs during the Jobsite Inspection. Mr. Moya insisted that Investigator Bernal had not taken any photographs and had gone back to the jobsite another time to take photographs. Investigator Bernal and Complainant credibly testified that all of the photographs contained in the Agency Record were taken during the Jobsite Inspection during which Mr. Moya was present.
Mr. Moya became very agitated and verbally aggressive during the hearing as his frustration with the hearing process mounted. Mr. Moya was very repetitive and the Administrative Law Judge attempted to refocus Mr. Moya several times during the hearing, however, Mr. Moya refused to take direction. The Administrative Law Judge adjourned the hearing due to Mr. Moya’s behavior, but not before Mr. Moya was given ample opportunity to defend his license.
Administrative notice is taken of Respondent’s prior License record on February 21, 2025. Such prior License record reflects that Respondent’s License Number 337496 was first issued on April 6, 2022, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no complaints 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.”
The evidence established that Respondent departed from or disregarded plans or specifications in a material respect that is prejudicial to Complainant without consent, and departed from or disregarded a building code of this state or any political subdivision of this state in a material respect that is prejudicial to Complainant. Mr. Moya asserted that Ms. Summers instructed him not to obtain a permit for the project because they had not received permission from the HOA. However, as a licensed contractor, Respondent is required to comply with the statutes and rules governing licensed contractors. Those statues and rules require Respondent to obtain permits for work that requires permitting. Respondent did not do so, should not have agreed to perform the work, and should not have actually performed work, without having the required permits in place. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(a) and (b).
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 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 Written Directive being issued and acknowledged such. The evidence further established that valid justification did not exist for such failure. 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 337496 for a period of seven (7) 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, February 24, 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]
Thomas Phelan
[email redacted]
Brothers Group Business Corp
[email redacted]
Albert Bernal
[email redacted]
By: OAH Staff