ALJDEC decisions subject to certification as final

07F-2011-ROC · Registrar of Contractors · 2008-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2008. APPEARANCES: Daniel Demland of Demland Design appeared personally. T C & T Management, LLC was represented by its attorney, Michael Thal, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

1. T C and T Management, LLC (“Respondent”) is the holder of License No. 194037, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Respondent hired Daniel Demland, R.A. of Demland Design (“Complainant”) to perform architectural work for a spec home located at 10234 N. 58th Place, Phoenix, Arizona. 3. Complainant filed a written Complaint with the Registrar alleging statutory violations by Respondent during the spec home project. The Registrar assigned that Complaint as No. 07-2011. 4. In response to Complainant’s Complaint, the Registrar issued a Citation and Complaint in Case No. 07-2011 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(2) and (7). 5. In his Complaint in Case No. 07-2011, Complainant states that he filed a prior Complaint No. 06-2520 with the Registrar against Respondent. In that Complaint, Complainant alleged that Respondent improperly used the plans he stamped and his complaint against Respondent filed with the Arizona Board of Technical Registration regarding the use of his plans for the subject project. 6. Case No. 06-2520 was forwarded to the Office of Administrative Hearings for an evidentiary hearing, which was conducted by Administrative Law Judge Robert I. Worth. 7. After a full, formal hearing, Judge Worth issued a Decision and Recommended Order of Administrative Law Judge in Case No.06- 2520/Docket No. 06F-2520-ROC (“Decision”), which was adopted by the Registrar. Notice is taken by the Administrative Law Judge of that Decision in this matter. The Decision is incorporated herein by reference. 8. Judge Worth’s Decision, as adopted by the Registrar, was appealed to the Superior Court of Maricopa County. The Superior Court recently upheld that Decision and the disciplinary action imposed upon Respondent. 9. The parties cannot collaterally attack the Findings of Fact and Conclusions of Law in Docket No. 06F-2520-ROC in this matter. 10. Complainant complains that Respondent continued to construct the subject spec home in conflict with his stamped plans. 11. The City of Phoenix approved Respondent’s construction of the subject spec, which passed city building inspections. The City of Phoenix issued a Certificate of Occupancy for the completed spec home. 12. Complainant also complains that he has liability exposure due to Respondent’s sale of the completed spec home. It is determined that such exposure is speculative at the present.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-199(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar in Case No. 07-2011. As Judge Worth noted in his Decision, “the ultimate approval of the as-built construction resulting from the City of Phoenix’s periodic inspections and the likelihood of its issuance of a Certificate of Occupancy would render any deviations neither material nor prejudicial.” 4. Respondent did not violate the provision of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar in Case No. 07-2011. Complainant failed to meet his burden of proving measurable substantial injury.

RECOMMENDED ORDER

The Citation and Complaint in Case No. 07-2011 shall be dismissed on the effective date of the Order entered in that matter. 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 40 days from the date of that certification. Done this day, April 21, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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