ALJDEC decisions subject to certification as final

06F-2478-ROC · Registrar of Contractors · 2007-01-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2006 APPEARANCES: Complainant: Miodrag Jocic appeared, pro per. Respondent: Marlin Porter, Vice-President, appeared and was represented by counsel, Barry Becker. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 3, 2006. 2. Complainant Miodrag Jocic (“Complainant”) is the owner of a residence located at 2901 W. Durango, Phoenix, Arizona (“premises/project”). 3. TJ Development Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 109919, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) on November 6, 1995. Christopher David Jones is the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended November 14, 1996 to July 16, 1997 (lack of bond); August 30, 1997 to March 11, 1998 (lack of qualifying party); January 25, 1999 – lifted October 20, 2000 (M98-1152); June 14, 2000 to October 18, 2000 (Recovery Fund Payout; February 20, 1999 to October 24, 2000 (lack of bond) and October 30, 2002 to June 17, 2003 (lack of bond). 4. Complainant filed a complaint with the Registrar of Contractors on June 7, 2006 wherein he alleged the project’s attached garage was not built according to approved plans, i.e., it was too small for two cars “in tandem.” 5. On June 30, 2006, Registrar of Contractors Inspector John Moll issued a “no corrective action required” letter which provided Home was purchased 11/01/05 as a spec home listed on MLS 10/10/05. Certificate of occupancy was issued 11/29/05, therefore, home was inspected and purchased during the final stage of construction (substantially complete).

Home was represented on MLS listing to have a 1 car garage. It appears there is a discrepancy with documents on file with The City of Phoenix Building Department indicating the home has a 36’ 2 car tandem garage.

There is no evidence the contractor misrepresented the home to complainant.

It appears this may be a real estate dispute issue beyond the jurisdiction of this agency.

6. Complainant disputed the findings of Inspector Moll and filed a request for hearing on July 11, 2006. 7. On August 21, 2006, the Registrar issued a CITATION AND COMPLAINT in Case No. 06-2478 charging Respondent with possible violations of A.R.S. §21-1154A 2, 7 and 3 (namely, R4-9-108, the workmanship rule). 8. Respondent filed an answer on August 31, 2006 wherein is asserted a general denial. 9. At the hearing, Complainant testified and submitted Exhibits A, C, D, E and G which were marked, admitted and considered. Exhibit B was admitted over objection. 10. Marlin Porter (“Porter”), vice president, appeared on behalf of Respondent and submitted Exhibits 1, 2 and 3 which were marked, admitted and considered. 11. From the evidence elicited at the hearing, the following facts are important to note: a. Respondent constructed the subject premises as a spec home for DVD Development LLC (“DVD”). Dan Good (“Good”), president and manager of DVD, testified that at the time Respondent was engaged for such purpose there was no end user/buyer in mind. Good also related that DVD had no conversations with Complainant during construction of the project or prior to the close of escrow. b. Good further testified that the field copy/specs (Exhibit 3) were not the exact plans for this project but were the general plans used for this model, i.e., 1293. Good further related that pages A1 and A-2 of Exhibit 3, not the foundation plan submitted by Complainant (Exhibit B), were used to construct this project which indicate a single car garage at 26’6” and did not include the handwritten words indicating a two car garage as in Exhibit B. Good testified that the subject house was constructed with a one car garage per plans and does not know from where the handwritten notation in Exhibit B came. c. Good further testified that the two car garage was offered as an option in the subject model as indicated in Exhibit 3 page C-1 but was not to be included in the instant project. d. On October 30, 2005, Complainant entered into a Purchase Contract to purchase the premises from DVD. (Exhibit 1) As of that date, the garage structure was all in place. e. On November 14, 2005, Complainant executed a Buyer’s Inspection Report whereby he accepted the premises with no corrections or repairs requested and waived any inspections. f. Complainant closed escrow on November 14, 2005 at which time the premises had been constructed but was not finished. At that time, the inside of the garage was not completed. g. Complainant asserts that the subject premises were constructed in accordance with Plot Plan/Land Survey (Exhibit A) which was approved by a Dennis Gray of the City of Phoenix and provides for a “2 car tandem garage.” Complainant acknowledged that a survey is insufficient to construct a home as plans and specifications are also needed. Complainant also stated that he did not know who inserted the handwritten notation “36’ 0” min for 2 car” in Exhibit B. h. Complainant further asserts that plan page A1 (Exhibit B) and Residential Construction Permit/Plan Review Application (Exhibit C) call for construction of a two car tandem garage. i. Good testified that page A-2 of Exhibit 3 calls for an optional two car garage and that 26’ 6” designates a 1 or 1.5 car garage; 17’ a single car garage. j. Good further testified that because of lot size/location it was a “near impossibility” to build this residence with a 36’ (two car) garage. k. A Building Permit was issued to Respondent, as contractor, on April 21, 2005 and provided for a “dbl” garage. l. A Certificate of Occupancy was issued on November 29, 2005 which indicated a “dbl” garage and noted that the residence had been constructed as a “new family residence per approved plans.” m. Complainant learned of the premises when walking around the neighborhood and did not contact DVD directly to purchase the home..

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. §32-1154A 2, 7 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

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 his 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. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 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. 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). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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. This tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (2). Although there appears to be some discrepancy between documents attendant to the construction of the subject project regarding whether a one or two car garage was to be erected, it is clear from the evidence adduced at the hearing that Respondent constructed the house as a spec home for DVD; a Certificate of Occupancy was issued which indicated the structure had been constructed per plans; Complainant first saw the home when it was in the last phase of construction; Complainant did not learn of or purchase the home from Respondent; and, at the time the Purchase Contract was signed, Complainant had viewed the project and waived any further inspections thereof. As a result, under the instant facts, if any departure from or disregard for plans and specifications did exist, DVD was the only entity with standing to assert violations of ars 32-1154A (2) as the then owner of the premises. 4. It is also determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108, the workmanship rule. Notwithstanding the above-referenced apparent discrepancy in construction documents regarding the garage to be constructed on the site, Complainant presented no evidence to substantiate a claim that Respondent built the project in a non-workmanlike manner. 5. It is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated ars 32-1154A (7). There was no evidence presented to establish that Respondent, as contractor, engaged in any wrongful or fraudulent conduct in the construction of the premises vis a vis Complainant or anyone else. Therefore, no violation of ars 32-1154A (7) has been proven.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. 06-2478 be dismissed.[1] Done this day, January 2, 2007.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ____________________

----------------------- [1] 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 in this matter will be forty (40) days from the date of that certification.

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