ALJDEC decisions subject to certification as final

07F-L0276-ROC · Registrar of Contractors · 2007-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2007. APPEARANCES: Jason and Lisa Schrotberger appeared personally. Iron Gate Homes, L.L.C. did not appear. 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:

FINDINGS OF FACT

1. Iron Gate Homes, L.L.C. (“Respondent”) is the holder of License No. 206186, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. On or about April 6, 2005, Jason and Lisa Schrotberger (“Complainants”) entered in to an agreement with Donald Joseph Carroll and Bracale Construction for the construction of a residence in Lake Havasu City, Arizona. 3. Donald Joseph Carroll and Bracale Construction represented to Complainants that they were licensed contractors. However, they were not licensed. 4. Donald Joseph Carroll is Respondent’s member and qualifying party. Respondent became licensed on May 3, 2005. Respondent performed the work under the parties’ contract. 5. The parties’ contract provided that the new residence would be completed within 210 days from the date the permit was pulled. The residence was not completed within that time frame. 6. Respondent’s member and qualifying party, Donald Joseph Carroll, admitted to Complainants that the house was under budgeted. 7. Mr. Carroll also admitted to Complainants that Respondent had been diverting their funds for other projects. 8. In October 2006, Respondent ceased performing any work on the project when the house was 70% completed. 9. The square footage of Complainants’ residence had not been calculated and measured for the width of their lot. 10. On or about December 7, 2006, Complainants filed a written complain with the Registrar alleging statutory and regulatory violations by Respondent. 11. In response to the filed complaint, the Registrar’s assigned inspector, Cliff Corlett, performed a jobsite inspection on December 13, 2006. The inspector reviewed the 27 items described in the complaint, which are incorporated herein by reference. 12. As a result of the jobsite inspection, Inspector Corlett issued a Corrective Work Order dated December 13, 2006, which required Respondent to timely perform required remedial repairs. In addition to Complainants’ detailed list of deficiencies confirmed by the inspector, he also opined that Respondent needed to complete items such as “lath, stucco, interior/exterior painting, concrete flat work and crack repair/replace, A/C units, garage doors and openers, interior electrical trim and fixtures, A/C trim out, plumbing trim out, countertops, appliances, etc.” 13. On or about January 3, 2007, Complainants requested a formal hearing. 14. The Registrar issued a Citation and Complainant alleging possible violations by Respondent of A.R.S. § 23-1154(A)(1), (2), (7), (20), (23) and (3), namely R4-9-108. 15. The Registrar forwarded the case to the Office of Administrative Hearings, an independent agency, for formal hearing. 16. The Registrar issued a Notice of Hearing advising the parties of the time, date and location of the formal hearing. A copy of the notice was sent to the parties at their addresses of record with the Registrar. 17. The commencement of the hearing was delayed for 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay the Administrative Law Judge conducted the hearing in Respondent’s absence. 18. Respondent abandoned Complainants’ project without legal justification. 19. Respondent deviated from plans and specification for the project, such as the serving shelf under kitchen window not per change order, failing to install the log mantel in the master bedroom, failing to construct the outside fireplace, no access panel for sprinkler system, missing skylight, and missing closet shelving. 20. Respondent misappropriated Complainants’ funds paid to it during the project. 21. It appears that the Registrar was unaware of Mr. Carroll’s unlicensed contracting at the time it approved and issued Respondent’s contracting license. 22. Respondent failed to comply with the Registrar’s Corrective Work Order dated December 13, 2006. 23. Respondent failed to meet minimum workmanship standards during the construction of Complainants’ residence. 24. Respondent’s above described acts or omissions are wrongful acts that substantially injured Complainants. 25. The Registrar’s official records reflect that Respondent’s contracting license was suspended by operation of law on May 2, 2007 for lack of bond and again suspended by operation of law on June1, 2007 for non- renewal. There are 11 open complains and two resolved/settled/withdrawn complaints listed against Respondent’s license.

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. Respondent violated the provisions of A.R.S. § 32-1154(A)(1), as cited in the Citation and Complaint issued by the Registrar. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar. 7. Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C R4-9-108, as cited in the Citation and Complaint issued by the Registrar. 8. The unlicensed contracting by Mr. Carroll is a subsequent fact which, if known at the time the Registrar approved and issued Respondent’s license, would have been grounds to deny that license, as provided by A.R.S. § 32-1154(A)(20). 9. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of jurisdiction to impose disciplinary action upon that license for the above violations.

RECOMMENDED ORDER

Respondent’s License No. 206186 shall be revoked on the effective date of the Order entered in Case No. L07-0276. 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, September 18, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

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

By ___________________________

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