ALJDEC - Licensing

2024A-12740-CHC-ROC · Registrar of Contractors · 2025-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michele White,

COMPLAINANT,

v.

Rhino Construction & Remodeling LLC

License No. ROC 333636,

RESPONDENT.

No. 2024A-12740-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 12, 2025.

APPEARANCES:

For Complainant: Abelardo Mea-Rodriguez.

For Respondent: Everardo Flandes Rico.

For the Registrar of Contractors: Michael Wiskow.

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. Respondent’s Exhibits.

_____________________________________________________________________

FINDINGS OF FACT

Rhino Construction & Remodeling LLC (Respondent) was the holder of License No. 333636 issued by the Arizona Registrar of Contractors (Registrar) on June 9, 2021.

On or about May 9, 2023, Michele White (Complainant) entered into a contract with Respondent for, among other things, to build a casita.

On or about February 28, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment.

The Registrar assigned the complaint to Investigator Mike Wiskow, who issued a Jobsite Inspection Notice on November 25, 2024, scheduling the inspection for January 9, 2025. Investigator Wiskow conducted the jobsite inspection on January 9, 2025.

Following the inspection, Investigator Wiskow issued a Written Directive From the Registrar to Respondent on January 10, 2025, that provided as follows:

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

Complaint Item: 1 - Work completely stopped

Investigator’s Observation: Confirmed. The project has not been worked on in over 2 months. The project is currently at the framing stage. The project should be completed and certificate of occupancy should be obtained by the local building jurisdiction.

Contractor should finish project by 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 - The framing is incorrect.

Investigator’s Observation: Confirmed. The top plate of the framing is incorrect. The corners of the top plate should overlap.

Contractor should make repairs and obtain a passing framing inspection by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely

A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship.

On January 28, 2025, Investigator Wiskow contacted both parties who confirmed that some work had been done, but the corrective work was not complete. Two individuals who did work for Respondent during the directive period were not employees of Respondent and were not independently licensed.

On February 13, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on February 27, 2025.

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

On March 14, 2025, the Registrar issued a Notice of Hearing on Contested Case. The hearing was reset for May 12, 2025.

Respondent agreed that he ripped out the irrigation lines during the initial work. He also testified that he was very ill with pneumonia, including at least one hospitalization, which resulted in his inability to complete the work. He testified that he provided a new contract to the Registrar, which was confirmed to be compliant.

Administrative notice was taken of Respondent’s prior License record on May 29, 2025. According to that record, Respondent’s License No. 333636 was Active, and the license had one disciplined case.

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).

The preponderance of the evidence established that Respondent failed to comply with this chapter in violation of A.R.S. § 32-1154(A)(12), namely the contract requirements in A.R.S. § 32-1158. However, the preponderance of the evidence also established that Respondent has since corrected its 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).

The preponderance of the evidence failed to establish that Respondent attempted to evade this chapter by aiding or abetting a licensed or unlicensed person in violation of A.R.S. § 32-1154(A)(9). The statute includes the introductory phrase, “[a]ttempting to evade this chapter by,” meaning that the Respondent must be attempting to evade a statutory requirement by engaging in the cited activity. Here, no allegation was presented regarding what Respondent was attempting to evade; accordingly, the violation was not proven.

“[A]n administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.” Here, Respondent damaged Complainant’s irrigation system.

RECOMMENDED ORDER

Based on the foregoing, following is recommended:

On the effective date of the Order, the Registrar shall suspend for five days Respondent’s License No. 333636.

The Registrar should require Respondent to pay the sum of $500.00 as a civil penalty, pursuant to A.R.S. § 32-1154(E).

The Registrar should require Complainant to submit two bids to repair the irrigation system, and based upon those bids, the Registrar should require Respondent to pay a reasonable sum in restitution for damages caused to the irrigation system.

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 and restitution.

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, June 2, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mike Wiskow

[email redacted]

Michele White

[email redacted]

Abelardo S. Mea Rodriguez

[email redacted]

Rhino Construction & Remodeling LLC

[email redacted]

By: OAH Staff