ALJDEC decisions subject to certification as final

06F-M1801-ROC · Registrar of Contractors · 2007-07-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, March 29 and June 26, 2007 APPEARANCES: Complainant: Hagit Mizrachi appeared at the January and March 29, 2007 hearings, pro per. Respondent: Eric Shuttleworth, customer service representative, appeared at each hearing on behalf of Respondent and was represented by counsel, Ryan Toftoy. Registrar of Contractors: Inspector Jack Clark appeared on behalf of the Registrar of Contractors at the January 11, 2007 hearing. 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 first came for hearing at the time, date and place set forth in this tribunal’s Order Granting Continuance dated October 24, 2006. The parties did not conclude the presentation of evidence at that time and a further hearing was scheduled for March 29, 2007. Prior to the presentation of additional testimony and evidence on March 29, 2007, the undersigned addressed certain preliminary issues with the parties concerning, inter alia, the presence and absence of witnesses, subpoenas duces tecum and a potential motion to continue by Complainant. During the course of such discussion, Complainant took ill to such a degree that it was necessary to summon Phoenix Fire Department paramedics. Once Complainant’s medical condition stabilized, the Administrative Law Judge discussed with the parties whether to proceed with the further hearing. Due to Complainant’s questionable health condition which fostered concern regarding her ability to competently present her case as well as Respondent counsel’s concomitant apprehension to go forward with the hearing under the circumstances, the undersigned determined it would be in the best interest of all involved to continue the further hearing. As a result, the further hearing was re-scheduled for June 26, 2007 pursuant to this tribunal’s March 29, 2007 Order Continuing Further Hearing. On June 20, 2007, Complainant, by and through counsel, Clint W. Smith, filed with the Registrar of Contractors a correspondence which advised of Complainant’s anticipated filing for Chapter 7 bankruptcy protection, the expected accompanying relinquishment of ownership of the subject premises and intended absence from the further hearing. The Office of Administrative Hearings was provided a copy of such correspondence on June 21, 2007. The further hearing convened June 26, 2007 notwithstanding Complainant’s absence. 2. At all times here relevant, Complainant Hagit Mizrachi (“Complainant”) was the owner of a residence located at 2367 W. Silver Streak Way, Queen Creek, Arizona (“premises/project”). 3. Respondent Beazer Homes Holdings Corp. dba Beazer Homes (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 114625, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) June 3, 1996.[1] Francois Marcel Gratton is an employee and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended December 22, 1997 through January 5, 1998 (M97-1276), February 19- 22, 1999 (98-1713), June 1-9, 2006 (non-renewal) and September 8-12, 2006 (lack of qualifying party). 4. Complainant filed a complaint with the ROC on March 15, 2006 wherein she alleged various problems with the premises’ carpeting, drywall and kitchen cabinets. 5. Registrar of Contractors Inspector Jack Clark (“Clark”) conducted a jobsite inspection on April 21, 2006 and issued a Corrective Work Order on May 5, 2006 whereby Respondent was required to perform corrective work on items 2 (incomplete drywall repairs) and 3 (kitchen cabinets) of the complaint. Inspector Clark determined that no corrective work was required on complaint items 1 (carpet coming loose and falling apart), 4 (stairs and landings squeak) and 5 (uneven floor in bedroom 3). 6. On June 1, 2006, Complainant filed with the Registrar of Contractors a response to the Corrective Work Order (“addendum 1”) wherein she challenged the findings of Inspector Clark. Specifically, Complainant asserted that problems exist with all cabinets not just those in the kitchen and disputed Inspector Clark’s findings relative to the carpeting. Contemporaneously, Complainant asserted an additional ten (10) problem items. 7. On June 27, 2006, Complainant filed with the ROC a second correspondence (“addendum 2”) wherein she asserted three (3) additional items of concern. 8. On July 12, 2006, the Registrar issued a CITATION AND COMPLAINT in Case No. M06-1801 charging Respondent with possible violations of A.R.S. §32-1154A 2, 7, 23 and 3 (namely, A.A.C. R4-9-108, the workmanship rule). 9. The Registrar of Contractors issued a Notice of Amendment to Complaint on July 18, 2006 whereby the three additional items set forth in addendum 2 were incorporated into the CITATION AND COMPLAINT. 10. Respondent filed an answer on July 28, 2006 wherein it asserted, inter alia, a general denial of any alleged violation of contracting laws and specifically addressed the carpet and cabinet issues of the complaint as well as those complaints set forth in addenda 1 and 2. Respondent further asserted as an affirmative defense denial of access to the premises by Complainant. 11. At the hearing on January 11, 2007, Complainant testified and submitted Exhibits A, E, F, G and H which were marked, admitted and considered. Exhibits B, C1-C23 and D were admitted over objection. Mike Chairez (“Chairez”) also testified on behalf of Complainant on January 11, 2007. 12. Jim Cliburn (“Cliburn”), Team Leader – Customer Service, appeared and testified on behalf of Respondent at the January 11, 2007 hearing at which time Exhibits 1 and 3 were marked, admitted and considered. Exhibit 3 was admitted over objection at the January 11, 2007 hearing. John Bombadier (“Bombadier”), claims manager for Heritage Interiors, also testified on behalf of Respondent at the January 11, 2007 hearing. Steve Jacobs (“Jacobs”), floor covering inspector for Priority One, testified on behalf of Respondent at the June 26, 2007 hearing at which time Exhibits 4A, 4B and 5 were marked, admitted and considered. 13. Inspector Jack Clark (“Clark”) testified on behalf of the Registrar of Contractors at the January 11, 2007 hearing and described his observations and conclusions on his April 21, 2006 jobsite inspection and January 5, 2007 pre-hearing jobsite inspection. 14. Prior to the presentation of evidence at the January 11, 2007 hearing, the parties stipulated that the only remaining issues of dispute were complaint items 1 (carpet coming loose and falling apart) and 3 (all cabinets). At that time, the parties entered into a settlement agreement regarding item 3 by the terms of which Respondent was to caused to be removed all glue spots on the affected cabinets in the premises. 15. Prior to the presentation of evidence at the March 29, 2007 hearing, the parties advised that a dispute remained regarding item 3 and Respondent’s attempted remediation thereof. Complainant asserted that Respondent did not properly remedy the cabinet problems as agreed to on January 11, 2007. Respondent contended that it attempted to address the cabinet glue spot issue but was denied access due to Complainant’s claimed adverse reaction to the solvent to be used to remove the glue. 16. Prior to the continued presentation of evidence by Respondent in its case-in-chief at the June 26, 2007 hearing, counsel therefor made a verbal motion to dismiss the instant complaint with prejudice based on Complainant’s failure to meet her burden of proof with respect to items 1 and 3. Such motion was denied and Respondent proceeded with the remainder of its evidence in defense of its case. 17. From the evidence elicited at the hearing, the following salient facts are important to note: a. With regard to item 1 (carpet coming loose and falling apart), the weight of the evidence adduced established that damage to the subject carpeting was not result of poor workmanship and/or manufacturer defect but was likely caused by Complainant’s two large dogs as evidenced by significant urine stains, erratic tearing and Complainant’s admission that the dogs damaged the underlying padding. b. With regard to item 3 (cabinets), Complainant unreasonably denied Respondent access to the premises to remove the glue spots pursuant to the parties’ January 11, 2007 settlement agreement. c. Complainant abandoned prosecution of her complaint by failing to appear at the June 26, 2007 hearing.

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, 23 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. …

23. Failure to take appropriate 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 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. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is 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 2 in that Complainant presented little, if any, evidence on this alleged violation. 5. It is further 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 23 and 3 (namely, A.A.C. R4-9- 108, the workmanship rule) as they pertain to complaint item 1 (carpet coming loose and falling apart). 6. This tribunal further 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 23 and 3 (namely, A.A.C. R4-9-108, the workmanship rule), as they pertain to complaint item 3 (cabinet). Complainant unreasonably denied Respondent access to the premises in order to address the removal of the glue spots pursuant to the parties’ January 11, 2007 settlement agreement. As a result, Respondent is deemed to be in compliance with the Registrar of Contractors’ May 5, 2006 Corrective Work Order and the parties’ referenced settlement agreement. 7. It is further determined and concluded that the evidence presented by Complainant failed to meet the requisite burden of establishing that Respondent’s actions herein constituted a wrongful or fraudulent act which resulted in substantial injury to Complainant. Therefore, no violation of A.R.S. §32-1154A 7 has been proven.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation in Case No. M06-1801 be dismissed.[2] Done this day, July 10, 2007.

_______________________ Brian E. Smith Administrative Law Judge Original transmitted by mail this ____ day of ____________, 2007, to:

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

By __________________________ ----------------------- [1] Respondent previously held license no. 097891 issued by the ROC on July 1, 1993. [2] 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 940) 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