ALJDEC

01F-2524-ROC · Registrar of Contractors · 2001-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 2001. APPEARANCES: COMPLAINANT: by Chris Geary, Esq., with Michael and Bonita Stein, and Ron Starling. RESPONDENT: by Jeff Gross, Esq., with Mike Irving, and Alan Horvick (telephonic). REGISTRAR OF CONTRACTORS: Inspector Warren Duncan.

ADMINISTRATIVE LAW JUDGE: Anthony Halas. _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Complainant Economy Self Storage Systems, L.L.C. (Economy Self Storage) is a business entity and owner of developed property at 10840 North Cave Creek, in Phoenix, Arizona, the site of the commercial construction at issue in this matter. Michael and Bonita Stein, husband and wife, are members of that limited liability company. 2. Respondent EMT Construction, Inc. (EMT Construction) is a corporation holding Arizona Contractor’s License No. 136022, Class B-2, issued by the Registrar of Contractors (Registrar) on June 9, 1998. Michael Irving (Irving) is an officer in the corporation, and qualifying party on the license. 3. Complainant Economy Self Storage, acting as owner/builder, with Michael Stein (Stein) as principal[1], subcontracted with Irving and EMT Construction for masonry work on the project (as one of a number of subcontractors). The project was primarily a self-storage facility, but also included several other commercial buildings, with paving and associated improvements. The several buildings on site are referenced as buildings "A", "B", "C", and "D". 4. During the course of construction on the project, Economy Self Storage experienced difficulties in scheduling and supervision of the subcontractors it had hired, so Michael Stein verbally retained the services of Irving and EMT Construction as consultant to superintend and oversee completion of the multi-building project. This was in addition to the written masonry subcontract. The parties did not execute a written contract for Irving's consultation and supervision services, instead relying on a verbal agreement, which went into effect about the last week in March, 1998 (See Exhibit C). Initially, the agreement was for Irving to bill for his services by the hour, and for the cost of the subcontractors he secured, without mark-up; later, the agreement was verbally modified to allow Irving to add 10% of the cost of each subcontract. 5. All work done and supervised by Irving and EMT Construction was essentially completed no later than February, 1999. 6. On April 21, 1999, the City of Phoenix issued a Certificate of Occupancy for building "B". Although unoccupied since completion, the building was zoned and remains intended for retail commercial use. 7. A. On April 20, 2001, Michael and Bonita Stein filed a complaint with the Registrar, alleging several areas of dissatisfaction with Respondent's work and supervision of the project, including certain specified workmanship deficiencies related to building "B".[2] B. The Registrar's assigned inspector, Warren Duncan, conducted a jobsite inspection on May 7, 2001. Based on his findings and observations at that time Inspector Duncan then issued a Corrective Work Order on May 23, 2001. C. When Complainant subsequently requested hearing, the Registrar issued CITATION AND COMPLAINT in Case No. 01-2524 on July 25, 2001, charging Respondent with possible violations of A.R.S. § 32-1154.A.1, 2, 3 (and the workmanship rule, A.A.C. R4-9-108), 7, 9, 10, 20, and 23. D. At hearing, Complainant appeared, represented by counsel, presented the testimony of Michael Stein, Bonita Stein, and Ron Starling, and offered Exhibits A through D, which were marked and admitted. Respondent appeared, represented by counsel, presented the testimony of Michael Irving and Al Horvick (telephonic), and offered Exhibits 1 through 12, which were marked and admitted. Inspector Duncan also appeared and testified. E. The testimony and evidence at hearing were generally presented by reference to the items of the Corrective Work Order, such that the following findings are also made by similar reference:

8. CWO 1. Abandoned project. Inspector could not determine. • No action required by contractor.

A. No testimony and evidence was presented to contravene Inspector Duncan's Corrective Work Order determination on this item (which determination he confirmed in his testimony at hearing).

9. CWO 2A. Contractor did not provide warranties. • Contractor to supply any manufacturer warranties.

A. Michael Stein (Stein) testified that Irving and EMT Construction had failed to provide warranty information, specifically with regard to the HVAC system and the evaporative cooler. B. Bonita Stein (Ms. Stein) testified that the absence of warranty information included installation and manufacturer's warranty information for the roofing (which the roofing subcontractor later provided), plumbing, and HVAC. C. Michael Irving, (Irving) testified that it was his practice never to remove any manufacturer's warranty information from the jobsite, and that he thought it likely that the HVAC and evaporative cooler warranties (or information to obtain them) were in the housings for those units, although he could not be certain, given the passage of time since he had departed the site, and the fact that the Steins had never asked him for any such information at any time before filing their complaint. D. Irving stated that for many other installed products (such as plumbing and electrical materials), there generally were no manufacturer's warranties provided. E. On the evidence of record, the undersigned finds that given the absence of any request by Complainant for warranty information in the two years following Respondent's departure from the jobsite, and Irving's explanation as to his usual practice in providing such information, no further action is required by the contractor on this item.

10. CWO 2B. Contractor did not provide lien waivers. • Not within jurisdiction of Registrar of Contractors. No action required by contractor.

A. No testimony and evidence was presented to contravene Inspector Duncan's Corrective Work Order determination on this item (which determination he confirmed in his testimony).

11. CWO 3. Water leaks at north end of building "B". • Contractor to determine cause and correct by appropriate means.

And (to limit repetition of related findings),

CWO 4. Excessive settlement of fill at building "B". • Contractor to correct by appropriate means.

A. Building "B" is a two story structure built into a slope, with fill dirt then added on three sides, with the lower floor below street level. Two exterior patio areas at the north and south ends of the building are at street level. At three areas of the interior lower level wall at the north end and one area of the south end (i.e., the interior areas adjacent to and underneath the patio areas), there is evidence of water intrusion, with standing water on the floor after hard rains, with staining (See photographs, Exhibit 1). B. For Complainant, Stein testified that the water leaks had been apparent to him since before September, 1998, and he stated he had verbally advised Irving. He opined, based on certain work done by EMT Construction to divert water, as well as his own his observations and discussions with Irving and civil engineer Ron Starling, that the cause of the leaks was inadequate compaction of the ground under the concrete patio slabs, and inadequate waterproofing on the exterior walls below grade. C. Stein described certain essentially cosmetic rather than corrective measures he had taken to minimize water damage and make the lower level interior more usable (See photographs 1 and 2, Exhibit 1). D. Stein confirmed that shortly before Irving and EMT Construction had departed the job site, the concrete patio slabs at building "B" had been poured but the slabs had cracked and sunk about 4 to inches, to the extent that in January, 1999, Stein had hired a subcontractor, Triple H Construction, to remove the 4" thick concrete (approximately 100 s.f. on the north end; 150 s.f. on the south) and underlying "ABC" fill, and then level the ground at each end with additional onsite fill dirt. (See Exhibit B). E. Stein was unaware whether Triple H Construction had compacted the dirt it laid, or whether that company's work might have disturbed the waterproofing sealant used on the exterior walls by EMT Construction. Later, Stein had a landscaping subcontractor lay several inches of crushed granite on the surface of each patio area (instead of repouring concrete), over which he had laid smaller brick sections as entryways to the building from the north and south patio areas (See photos and 6, Exhibit 1). F. Stein stated that the ground was continuing to sink. He conceded that he had not requested in writing that Irving address the water leak at any time after Irving’s departure from the jobsite in February, 1999, through the time he filed the complaint in April, 2001. G. Stein confirmed that sometime before February, 1999 (and in any event before the fill had been added next to the building to bring to grade), he had observed an EMT Construction employee applying a tar-like substance to the north side exterior wall of the building, apparently for waterproofing purposes. He denied any recollection that Irving had ever asked him to chose one type of waterproofing product over another, and stated he would likely have chosen the more expensive, longer-lasting product if asked. By reference to an EMT Construction invoice dated April 13, 1998, he confirmed that he had been billed, and had paid, $1310.00 for waterproofing 2260 s.f. (Exhibit 8). H. Stein denied that he had ever told Irving or any other EMT Construction employee to stop any soil compacting Irving's company had been doing around building "B" while still on site, but confirmed that at one point he had stopped an EMT Construction employee from hosing the area with water to compact the dirt - although Stein himself later used that method to attempt further compaction. I. Ron Starling (Starling) testified at the request of Complainant to describe his education, qualifications, and experience as a licensed professional civil and structural engineer (Exhibit 6), and his past and present working relationships with Michael Stein on several projects, including inspection of Stein's residence. J. Starling confirmed he had been on site at building "B" only twice: in about November, 1998, when he had observed the cracked and settling concrete patio slabs) and again on November 1, 2001, when he had taken eight photographs of representative portions of building "B" (Exhibit [photo no. 4 is excluded from the evidence admitted]). The photographs were taken to demonstrate water intrusion and soil settling, and he had prepared a photo log and brief comments for each picture (Exhibit 7). He conceded that on neither occasion had he done any significant soil or compaction testing, or other intrusive testing, but instead relied essentially on the results of his visual inspection above the surface of the soil. K. Starling opined that on his inspection the brick entryways (photos 5 and 6, Exhibit 1) demonstrated bowing indicative of continued settling, as did his probe of a small sinkhole in a planter box adjacent to the lower floor of the north wall of building "B" (photo 7, Exhibit 1), and the general appearance on the side of the building that the soil had sunk four or more inches (consistent with the prior cracking and sinking of the concrete patio slabs. He concluded all such indications represented a lack of proper compaction of the eight to nine feet of fill which had been used.

L. On that indication of improper compaction, together with his observation of visual evidence that the exterior walls of building "B" below grade were not water-proofed but only "damp-proofed" (photo 7, Exhibit 1), and on signs of water intrusion on the lower level interiors of the north and south ends of the building (photos 1 and 2, Exhibit 1) which moisture seemed not the result of rain run-off from the roof (photo 3, Exhibit 1) but rather from rainfall directly on the soil, Starling opined that the greater water penetration allowed by the insufficiently compacted soil resulted in hydrostatic water pressure intrusion through the damp- proof but not water-proof exterior walls below grade. M. For Respondent, Irving stated that the below grade exterior walls of building "B" had been waterproofed, before fill was added, by his company's employee Al Horvick with the top of the line liquid product appropriate for masonry use, with which product Irving was quite familiar over his years of masonry work. He noted there were significantly more expensive (by 300-400%) waterproofing methods using vinyl membrane materials which were superior to the liquid product only in terms of length of service rather than waterproofing effectiveness. His recollection was that when he had asked Stein which product to use, Stein had chosen the cheaper liquid to save money since he was over budget. N. Irving confirmed one leak-troubleshooting incident at building "B" in about July or August, 1998, in which the waterproofing below grade had been found to have been accidentally scratched or cut, but which had been repaired with a new coat of the liquid product, and then water-tested without any seepage being found. O. Irving described the compacting process his company had used around the building, in which fill would be added (somewhat randomly, when delivered), then compacted with a "jumping jack" pneumatic hammer, and finally, by water compaction with a hose in order to meet industry standard. He recalled that it was during such process of water compaction (between July and September, 1998) that Stein had told him to quit, to save the expense of hauling in additional fill dirt. Irving acknowledged that he had nothing in writing that waived his company of responsibility for the compacting (or lack of compacting). P. As part of the compacting process, Irving described the compacting necessary before and after EMT Construction laid a 112" by 4' rebar-reinforced underground concrete "anchor" required as a result of a redesign of the plans for the "wing walls" of building "B". Q. Sometime after that, Irving noted, the concrete patio slabs had been poured, but not under his supervision or control, nor had he any involvement with their subsequent removal in January, 1999 by Triple H Construction after the slabs had cracked and sunk cracking and sinking, or the work eventually done by the landscaping contractor. R. Irving did not believe that his company's work or supervision had resulted in either insufficient compaction or inadequate waterproofing. He was concerned that the work done by companies on site after his departure (such as Triple H and the landscaping subcontractor) could have resulted in insufficient compaction of the soil, or loss of waterproofing if the grade adjacent to the exterior walls was disturbed. S. Alan Horvick (Horvick) testified that he was a friend of Irving, and had been employed by EMT Construction until a few years ago. He described his work on building "B" of the Economy Self Storage project as a former laborer and supervisor for EMT Construction. He stated he had waterproofed the exterior walls before the fill had been made, and that he had been involved in the use of the pneumatic jumper compaction and water compaction until told to stop by Stein. T. The undersigned finds that the evidence of record is uncontroverted in demonstrating insufficient compaction of the soil in the patio areas of building “B”, contrary to minimal standards of workmanship. U. In resolution of conflicting testimony, It is further found that although subsequent contracting activities by others may have contributed to the insufficient compacting, Respondent EMT Construction remains responsible for correction of the deficiency by appropriate means, given the absence of any unequivocal waiver to excuse its cessation of necessary compacting. V. In addition, the undersigned finds that the evidence is uncontroverted in demonstrating water intrusion into the lower levels of the north and south ends of building “B”, contrary to minimal standards of workmanship. W. In resolution of conflicting testimony, It is further found that although the exact means by which the water intrusion occurs cannot be readily ascertained, Respondent EMT Construction remains responsible for correction of the deficiency by appropriate means.

12. CWO 5. Ductwork for evaporative coolers leak. Inspector could not determine contractor responsibility. • No action required by contractor.

A. No probative testimony and evidence was presented to contravene Inspector Duncan's Corrective Work Order determination on this item (which determination he confirmed in his testimony).

13. CWO 6. Contractor did not install sleeves under asphalt. Inspector could not determine. • No action required by contractor.

A. No testimony and evidence was presented to contravene Inspector Duncan's Corrective Work Order determination on this item (which determination he confirmed in his testimony).

14. CWO 7. Contractor used unlicensed contractor for heating and air conditioning work. • Contractor to use properly licensed contractors.

A. Ms. Stein explained that when she attempted to have the HVAC subcontractor (Robert Price) address an evaporative cooling ductwork leak (apparently since resolved), and he was not cooperative, she determined from Registrar of Contractors records that the man was not and had never been licensed. She conceded she did not know to what extent he may have otherwise been qualified or experienced in that trade. B. Irving explained that at the time he secured Robert Price and Don Pool to subcontract the HVAC work, he had been told that Pool was licensed and Price was his partner, which information he relied on, only to find out after the fact that it was not so. Irving acknowledged that he would use only properly licensed subcontractors in the future in order to comply with the Registrar's directive. C. The evidence of record establishes that Respondent secured a subcontract with an unlicensed HVAC contractor, as alleged. Because there is no evidence that this HVAC subcontract work requires present corrective action, and the Registrar's directive is prospective in requiring Respondent to use properly licensed contractors, there is no further action presently required by Respondent on this item.

15. CWO 8. Contractor overcharged complainant for sealing and speed bumps. Contract is cost plus. • Contractor to correct by appropriate means.

A. Ms. Stein referenced certain entries she had highlighted on the June 2, 1998 contract by paving subcontractor YPM, Inc. for $21,848.00 (Exhibit 2), the July 2, 1998 YPM, Inc. invoice for $24,348.00 (including the original contract amount plus $2500.00 for seal coating and speed bumps), the July 17, 1998 EMT Construction invoice (Exhibit 3), the October 29, 2001 EMT Construction invoice (Exhibit 4), and the January 8, 1999 EMT Construction invoice (Exhibit 5). B. From these entries Ms. Stein calculated that Irving and EMT Construction had billed, and Economy Self Storage had paid, $3940.00 for the seal coating and speed bumps done by YPM, Inc., although YPM had billed the work to EMT Construction at only $2500.00, such that EMT Construction had added a mark-up of $1440.00, contrary to Irving's verbal agreement with Stein. C. Irving denied any intent to mark-up YPM, Inc.'s subcontract bill to Economy Self Storage, and disputed that any such $1440.00 had been to EMT Construction's benefit, if in fact an accounting or clerical error had been made, or as he believed to be the case, Stein had increased the scope of the work to be subcontracted to YPM. D. To that end, Irving referenced photocopies of EMT Construction's checks (all of which had been negotiated) to YPM (aka Young's Paving), and particularly check no. 5009, dated January 8, 1998[3], for $3940.00 (Exhibit D), exactly the amount he had invoiced Stein (Exhibit 5). E. On the evidence presented, the undersigned finds that Respondent EMT Construction did not overcharge Complainant for the subcontracted seal coating and speed bumps. Therefore, no further action on this item is required by the contractor. 16. As set forth in the CITATION AND COMPLAINT issued by the Registrar of Contractors, Respondent EMT Construction was advised that in the event of a finding of a violation against the contractor, the prior disciplinary record of final Registrar of Contractors’ orders against the license at issue may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against General Small Commercial License No. 136022, Class B-02 and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding this license[4]. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of any violation proven herein.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. §§ 32-1154.A.1, 2, 3 (and A.A.C. R4-9-108, the workmanship rule), 7, 9, 10, 20, and 23. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 9. 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. … 10. Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter. … 20. Subsequent discovery of facts which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license. … 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The undersigned first concludes that Respondent’s actions in performing consulting and superintending work under the terms of the verbal agreement with Complainant clearly constituted the work of a “contractor” within the plain meaning and intent of A.R.S. § 32- 1101.B. 4. The undersigned then concludes that Complainant has not demonstrated, by a preponderance of the evidence, that Respondent: A. Abandoned the contract, or refused to perform, so no violation of A.R.S. § 32-11154.A.1 has been proven; B. Departed from or disregarded plans, specifications, or building codes, so no violation of A.R.S. § 32-1154.A.2 has been proven; C. Failed to complete the project for the price stated, so no violation of A.R.S. § 32-11154.A.9 has been proven; D. Acted such that subsequent discovery of facts which if known would have been grounds to deny the license, so no violation of A.R.S. § 32-1154.A.20 has been demonstrated. E. Failed to take corrective action without valid justification, given Respondent’s proven defenses to several of the directives contained in the Registrar’s Corrective Work Order, so no violation of A.R.S. § 32-1154.A.23 has been proven. 5. The undersigned further concludes that a preponderance of the evidence demonstrates that Respondent aided or abetted an unlicensed person to evade the Arizona contracting laws (albeit without intent), in violation of A.R.S. § 32-1154.A.10. 6. The undersigned concludes that a preponderance of the evidence demonstrates that Respondent failed to meet minimal standards of workmanship relative to soil compaction and water intrusion, in violation of A.R.S. § 32-1154.A.3 and the workmanship rule, A.A.C. R4-9-108, such that further corrective action is necessary. 7. The undersigned concludes that such failure to meet workmanship standards constitutes a wrongful act resulting in substantial injury to Complainant’s intended use of building “B”, in violation of A.R.S. § 32- 1154.A.7. 8. Relative to that conclusion, it is noted that the Registrar of Contractors cannot order a trespass to provide a contractor access to perform required corrective action, but there is no reason evident in this record to depart from the long-standing policy of the Registrar to allow a licensed contractor a reasonable opportunity, after a hearing, to complete and correct any determined deficiencies in its work, by appropriate means and methods. 9. For that reason, it will be necessary for both parties to seek in good faith the scheduling of reasonable and timely access for Respondent to accomplish - in compliance with workmanship standards - that remedial work still required to adequately compact the soil and prevent water intrusion, prior to the imposition of any disciplinary penalties by the Registrar. Should there be an unreasonable refusal to allow the work to go forward by means and methods of the contractor’s choice reasonably directed to meet the standards of workmanship mandated by the Registrar, then in such an event, such refusal may be deemed tantamount to Respondent’s compliance with the necessary corrective action.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that, commencing days after the effective date of the Registrar’s Order entered in this matter, that License No. 136022, Class B-02 held by Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate action to complete and correct those items as determined in Conclusion of Law No. 6 and Finding of Fact Nos. 11.T, U, V, and W. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the required remedial work, or is unreasonably denied access for such work on or within 45 days after the effective date of the Registrar’s Order, then no license suspension shall be imposed and the entire CITATION AND COMPLAINT in Case No. 01-2524 shall be closed. Done this day, December 3, 2001.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Based on his testimony, Michael Stein had significant prior commercial and residential development experience in the Phoenix area. [2] Administrative notice confirms that Complainant filed written addenda to the original complaint on May 8 and May 31, 2001, alleging and specifying additional workmanship deficiencies. By letter dated June 20, 2001, Inspector Duncan advised the parties that all items in both addenda were filed beyond the two-year statute of limitations defined at A.R.S. § 32-1155.A., and therefore beyond the jurisdiction of the Registrar of Contractors. At hearing, Inspector Duncan explained that in this instance, and consistent with the policy of the Registrar, the statute of limitations ran from April 21, 1999 (the date the applicable Certificate of Occupancy had been issued, rather than when Respondent had completed work), such that the original complaint, filed April 20, 2001, had been filed just within two years of that date, but the two addenda had not, and the addenda were therefore untimely as beyond the statute of limitations. Complainant did not argue to the contrary. However, Respondent asserted, on the record, that even Complainant's original complaint should be considered untimely filed, on the basis that Respondent had last worked and supervised the project in February, 1999, well more than two years before the original complaint was filed, and given that certain of the items complained of in the original complaint were not related to the building "B" for which the Certificate of Occupancy had been issued (e.g., the overcharge alleged for seal coating and speed bumps). The undersigned ruled, on the record, that the original complaint was timely filed. [3] Irving stated that the date of "1-8-98" on check no. 5009 was a mistake, likely an "early in the year" typo, and should have been "1-8-99" instead, which date was consistent with the month the check was cashed, and consistent with the day he invoiced Stein for that same amount. [4] The undersigned notes testimony by Irving acknowledging discipline by the Registrar against his license. That reference appears to be to General Residential License No. 124904, Class B, issued June 27, 1997, which license is not at issue herein.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826