ALJDEC - Licensing
2024A-07224-CHC-ROC · Registrar of Contractors · 2024-11-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Santiago Gomez ,
COMPLAINANT
v.
Final Phase Remodeling LLC
License No. ROC 336212,
RESPONDENT
No. 2024A-07224-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 4, 2024.
APPEARANCES:
For Complainant: Santiago Gomez.
For Respondent: Failed to appear.
For the Registrar of Contractors: Investigator Steven Avila.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Final Phase Remodeling LLC (Respondent) was the holder of License No. 336212 issued by the Arizona Registrar of Contractors (Registrar) on January 8, 2022.
On or about December 5, 2023, Santiago Gomez (Complainant) entered into a contract with Respondent for, among other things, replace three doors.
On or about June 24, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work and failure to perform.
The Registrar assigned the complaint to Investigator Steven Avila, who issued a Jobsite Inspection Notice on July 5, 2024, scheduling the inspection for July 24, 2024.
Investigator Avila conducted the jobsite inspection on July 24, 2024, and Respondent was not present. Following the inspection, Investigator Avila issued a Written Directive From the Registrar to Respondent on July 25, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Did not order or install Anderson sliding patio door.
Investigator’s Observation: At the time of the inspection there was no work performed in the area of the patio door. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
A.R.S. § 32-1154(A)(1)
Complaint Item: 2 - Did not order or install laundry exterior door.
Investigator’s Observation: At the time of the inspection there was no work performed in the area of the exterior laundry door. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
A.R.S. § 32-1154(A)(1)
Complaint Item: 3 - Did not order or install garage exterior door.
Investigator’s Observation: At the time of the inspection there was no work performed in the area of the exterior garage door. Allegation is verified. Respondent shall correct by the appropriate means.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
A.R.S. § 32-1154(A)(1)
The Written Directive required Respondent to notify Investigator Avila of Respondent’s compliance with the directive prior to 5:00 p.m. on August 9, 2024.
On or about August 14, 2024, Complainant informed Investigator Avila that no corrective work had been performed on the project.
On August 29, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on September 10, 2024. Respondent’s Answer stated that the allegations were true: “What [Complainant] has said in his complaint is completely true. Currently, we are not in the position to do the work on his property anymore. . . . [Complainant] and I have spoken, and I agreed to pay back his deposit in full once some of the assets are liquidated from the company, he will get his full return of $6,100 dollars.”
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On September 18, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for November 4, 2024, at 1:00 PM.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record, where Respondent had received communications, evidenced by his Answer.
The hearing was held via Google Meet on November 4, 2024.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued either. Consequently, Respondent did not present any evidence to defend its license.
Investigator Avila testified that Respondent notified the Registrar that Respondent was bankrupt. He also testified in support of his findings.
Complainant testified in support of Investigator Avila’s investigation.
Respondent failed to appear at the hearing.
Administrative notice was taken of Respondent’s prior License record on November 20, 2024. According to that record, Respondent’s License No. 336212 was suspended on February 1, 2024, for non-renewal. There was one open complaint.
CONCLUSIONS OF LAW
Respondent was deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense 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 preponderance of the evidence established that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).
The preponderance of the evidence 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 for 15 days Respondent’s License No. 336212.
It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), 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, November 25, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Final Phase Remodeling LLC
[email redacted]
Santiago Gomez
Email [email redacted]
Steven Avila
[email redacted]
By: OAH Staff