ALJDEC decisions subject to certification as final

08F-1266-ROC · Registrar of Contractors · 2008-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2008 APPEARANCES: Complainants, Cara Seballos (“Seballos”) and Ruben Martinez (“Martinez”) appeared on their own behalf and Respondent was represented by its attorney, Dennis Wilenchik. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ At the outset of the scheduled hearing, Respondent made a motion to dismiss, indicating that this matter is not properly brought before the Registrar of Contractors, since the underlying issue involves the non licensed seller of the property, Richmond American Homes, Inc. (“Homes”) and has nothing to do with the licensed entity named herein, Richmond American Construction, Inc. (“Construction”), the builder of the home. Complainants voiced opposition to the motion. As Respondent pointed out, the Citation issued in this matter contains no allegation of substandard or unacceptable workmanship.[1] Evidence and testimony were presented briefly on the threshold issue of whether or not the motion should be granted. The contract between Homes and Seballos was entered into evidence and Diane Powers (“Powers”) testified at the hearing. Powers was shown to have been the salesperson, employed by Homes, at the time of the sale of the home to Seballos.[2] The contract for the sale of the home is between Homes, as the seller, and Seballos, as the purchaser. Martinez is not a party named on the contract. Construction is named on the contact, as the builder that would construct the new home, pursuant to the contract between Seballos and Homes. Evidence of record showed, that sometime after construction had commenced on the subdivision wherein Complainants’ home is located, there were significant construction delays, which caused Homes to issue a landscape credit or, as Powers called it, a gift of $30,000.00 to some, but not all, of the buyers in said subdivision. Apparently, Homes believed some of the buyers may have been aggravated (upset) by the delays which had occurred. Complainants did not receive either the $30,000.00 credit for landscape work, or any actual landscaping contemplated by such a credit. Complainants claim entitlement to either the $30,000.00 credit or comparable landscaping. Respondent argues that this dispute is purely a contract dispute between Seballos and Homes, regarding whether or not Homes had any contractual obligation to provide Seballos with the credit for $30,000.00 or specified landscape work. Complainants were given an opportunity to show any documentation that would indicate that Construction was involved in any of the contract aspects of the dispute over the landscaping credit and they were unable to produce any such documentation. Upon review and consideration of the motion to dismiss, for good cause shown it is determined that Complainants’ contract complaint is with the seller of the home, Homes, since Construction was merely the builder for the home and not involved in any contract agreement or obligation to provide Seballos with either specified landscaping or a $30,000 credit for landscape. Complainants have brought this matter before the improper forum, since the Registrar of Contractors has no jurisdiction over the non licensed seller (“Homes”) and Construction had no active role in the issue of whether or not Seballos was entitled to a $30,000.00 landscape credit on the contract. Thus, under all of the facts and circumstances of this case, it is recommended that this Citation (no. 08-1266), together with the Complainant upon which it is based, should be dismissed against Construction, who was merely the builder of the home. Nothing in this ruling should serve to prevent Complainants from pursuing their claim against Homes in a civil court of competent jurisdiction. 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.

Done this day, December 23, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] There is no allegation of a violation of A.R.S. §32-1154A (3); namely Rule R4-9-108. Thus, there is no issue of workmanship or habitability of the home in this Complaint. [2] She was no longer employed by Homes, at the time of this hearing.

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