ALJDEC - Licensing

2024A-07328-CHC-ROC · Registrar of Contractors · 2024-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sue Larson,

COMPLAINANT,

Southwest Restoration & Design Inc.

License No. ROC 215679,

RESPONDENT.

No. 2024A-07328-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2024.

APPEARANCES:

For Complainant: Sue Larson.

For Respondent: Jerome Kilber.

For the Registrar of Contractors: Investigator Robert Di Alto.

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. Complainant’s Exhibits.

_____________________________________________________________________

FINDINGS OF FACT

Southwest Restoration & Design Inc. (Respondent) was the holder of License No. 215679 issued by the Arizona Registrar of Contractors (Registrar) on January 20, 2006.

On or about June 28, 2023, Sue Larson (Complainant) entered into a contract with Respondent for, among other things, a bathroom remodel.

On or about June 28, 2024, Complainant filed a Licensed Complaint Form with the Registrar, narratively claiming that the work was incomplete.

The Registrar assigned the complaint to Investigator Robert Di Alto, who issued a Jobsite Inspection Notice on July 2, 2024, scheduling the inspection for July 23, 2024.

Investigator Di Alto conducted the jobsite inspection on July 23, 2024, and Respondent was not present. Following the inspection, Investigator Di Alto issued a Written Directive From the Registrar to Respondent on July 23, 2024, that provided as follows:

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

Complaint Item: 1- Barn door shower door not installed

Investigator’s Observation: Verified. Respondent shall complete project per original Estimate #3780, dated 06/28/2023, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions. Additionally, The Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: ARS §32-1154 (A)(8): Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

Complaint Item: 2- 2 Grab bars not installed in shower

Complaint Item: 3- 2 cultured marble corner shelves not installed

Complaint Item: 4- Kitchen flooring not installed

Complaint Item: 5a- Guest bath missing 1 corner shelf

The Written Directive required Respondent to notify Investigator Di Alto of Respondent’s compliance with the directive prior to 5:00 p.m. on July 30, 2024.

On or around August 10, 2024, Complainant informed Investigator Di Alto that no corrective work had been performed on the project.

On August 13, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

On August 27, 2024, the Registrar received Respondent’s Answer to the Citation. The Answer stated that Respondent was filing for bankruptcy.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On September 3, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for October 21, 2024.

The hearing was held via Google Meet and in person on October 21, 2024.

Investigator Di Alto testified in support of his investigation.

Complainant testified that the offered discount was decreased from 10% to 5%. Complainant’s husband, John Larson, testified that when Respondent asked for additional money to complete the project, Complainant provided it.

Jerome Kilber testified that he agreed with the Directive’s representation of work that was incomplete. Mr. Kilber testified that if he had said 10% discount, that it should have been a 10% discount.

The parties agreed that Complainant paid for work that was not completed. The parties disagreed how much Complainant overpaid.

Administrative notice was taken of Respondent’s prior License record on October 30, 2024. According to that record, Respondent’s License No. 215679 was active. There was only one open complaint and no other discipline.

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. 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 failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A). While the facts supporting this item are better suited to abandonment, Respondent failed to perform all work in a professional and workmanlike manner.

The preponderance of the evidence established that Respondent failed in a material respect to complete the project for the contracted-for price in violation of A.R.S. § 32-1154(A)(8). While the facts supporting this item are better suited to abandonment, Respondent failed to materially complete the project for the price stated in the contract.

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 10 days Respondent’s License No. 215679.

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 4, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Sue Larson

[email redacted]

Southwest Restoration & Design Inc.

[email redacted]

Robert Di alto

[email redacted]

By: OAH Staff