ALJDEC decisions subject to certification as final

07F-G2030-ROC · Registrar of Contractors · 2008-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2008. APPEARANCES: Piortr Suszczynski appeared personally. Meritage Homes Construction, Inc. was represented by its attorneys, Dennis I. Wilenchik, Esq. and Jamie L. Mayrose, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Meritage Homes Construction, Inc. (“Respondent”) is the holder of License No. 166223, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Piotr Suszczynski (“Complainant”) purchased a home constructed by Respondent. 3. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent concerning the construction of his residence. 4. In response to the Complaint, the Registrar’s assigned inspector, Jim Dimond, conducted a jobsite inspector to view the alleged deficient workmanship. After completing his jobsite inspection, Inspector Dimond advised the parties in writing that the Complaint should be closed. 5. Complainant’s Complaint did not allege that the HVAC unit did not properly cool the residence. In his letter to the parties recommending that the Complaint be closed, Inspector Dimond informed Complainant that if his HVAC unit did not properly cool his home, that Complainant could amend his Complaint to include such an allegation. 6. Complainant did not amend his Complaint to include the HVAC cooling issue. 7. The Registrar issued a Citation and Complaint in Case No. G07-2030 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (22) and (3), namely A.A.C. R4-9-108. 8. The Registrar forwarded Case No. G07-2030 to the Office of Administrative Hearings, an independent agency, for formal hearing. 9. At the hearing, Complainant announced that all Complaint items had been resolved. When he attempted to address the HVAC cooling issue, Respondent’s counsel objected because that issue was outside the scope of the Complaint. Complainant admitted that he had not amended his Complaint to include the issue, as suggested by Inspector Dimond. The Administrative Law Judge sustained Respondent’s objection. 10. Complainant did not present any evidence at the hearing.

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. R2-19-119(A). 3. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (7), (22) and (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar in Case No. G07-2030.

RECOMMENDED ORDER

The Citation and Complaint in Case No. G07-2030 is 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 45 days from the date of that certification.

Done this day, June 26, 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