ALJDEC decisions subject to certification as final

2009A-64259294-ROC · Registrar of Contractors · 2011-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondents appeared through their authorized representative, Thomas Thiede. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT. 1. Respondent M and M Development Group LLC (LLC)’s Class B (No. 214145) License was placed on inactive status on November 16, 2009. 2. Respondent Showcase Custom Homes Inc. (fn) is the holder of a Class B (No. 161194) License issued by the Registrar of Contractors. 3. Both Respondents share the same mailing address and the same qualifying party. 4. This is a residential matter where the Complainant purchased a new residence constructed by M and M Development Group LLC (LLC) located at 29122 N. 201st Ave., Wittmann, Arizona 85361. 5. Credible testimony and evidence established that the Complainant experienced water leakage in the roof of his new residence and that several roof tiles were missing or broken on his front porch roof. 6. The Complainant was dissatisfied with the workmanship on his new residence and complained to Respondent M and M Development Group LLC (LLC). 7. Credible testimony and evidence established that the M and M Development Group LLC (LLC) then attempted to correct the water leakage in the main roof but denied responsibility for the alleged problems with the roof tile on the front porch roof and refused to correct the roof tile over the front porch. 8. Credible testimony and evidence established that the Complainant then entered into an oral agreement with M and M Development Group LLC (LLC) wherein each party agreed to pay for one half of the cost replacing the tile on the roof on the front porch. 9. There was no dispute that the Complainant paid $550.00 to Respondent M and M Development Group LLC (LLC) for the Complainant’s portion of the cost of the replacement of the roof tile on the front porch roof. 10. There was no dispute that the roof tile on the Complainant’s front porch has been replaced and is now satisfactory. 11. When M and M Development Group LLC (LLC) failed to resolve the problems with the leaking roof the Complainant filed a formal Complaint against both of the Respondents with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondents to perform designated corrective work on the Complainant’s residence. 13. The Complainant then entered into a written Settlement Agreement with M and M Development Group LLC (LLC) wherein M and M Development Group LLC (LLC) agreed to pay the Complainant the sum $550.00 as restitution for the Complainant’s cost of replacing the tile on the front porch roof and furnish the Complainant with two gallons of exterior paint. The Complainant acknowledged that the faucet replacement on the bathtub was satisfactory and agreed to request the Registrar of Contractors to “quash” the complaint against both of the Respondents. 14. When the Registrar of Contractors refused to quash the complaints at issue the said Respondent refused to pay the Complainant the agreed upon money. 15. The Complainant then requested that the matter be reopened and that an administrative hearing be held. 16. On February 4, 2011, the Registrar of Contractors issued an Order Reopening Complaint and Setting Hearing. 17. At the onset of the Compliance Hearing the Complainant presented the following items as being still at issue: (1). The Complainant is asking for the return of the $550.00 that he paid to replace the roof over the front porch of his new residence. (2). The Complainant alleges that he is still dissatisfied with the repair to the roof of his residence. (3) The Complainant asserts that there is still an area of unrepaired interior ceiling damage in the hallway area of his residence. 18. There was no dispute that the remaining items of the Complaint and the Corrective Work Order had been fully corrected. 19. An assigned Agency Inspector testified that he had performed a water test of the Complainant’s roof and that he was unable to get the Complainant’s roof to leak. 20. Credible testimony and evidence established that the Complainant’s roof has been corrected to within applicable industry and workmanship standards. 21. There was no dispute that there is an area of unrepaired interior ceiling damage in the hallway of the Complainant’s residence that was caused by the previous roof leaks in the Complainant’s residence. 22. Respondent M and M Development Group LLC (LLC) did not dispute that it was fully responsible for the repair of the interior ceiling water damage in the Complainant’s hallway. 23. Credible testimony and evidence established that Respondent M and M Development Group LLC (LLC) was fully responsible for the entire cost of the correcting the Complainant’s front porch roof. Respondent M and M Development Group LLC (LLC) shall, as restitution, repay the Complainant for the $550.00 that the Complainant paid said Respondent for one half of the cost of the porch tile roof replacement. 24. Credible testimony and evidence, presented at hearing, established that Respondent M and M Development Group LLC (LLC) failed to fully comply with the terms of the Corrective Work Order issued in this matter. 25. Credible testimony and evidence established that Respondent M and M Development Group LLC (LLC) failed to perform its construction work on the Complainant’s residence in a professional and workmanlike manner. 26. Credible testimony and evidence established that Respondent M and M Development Group LLC (LLC) failed to properly display its license number proceeded by the acronym “ROC” as required by applicable statute. 27. Credible testimony and evidence established that that the Complainant and Respondent M and M Development Group LLC (LLC) had entered into a Settlement Agreement that was contingent upon an action of a third party which was not part of the Settlement Agreement. 28. Credible testimony and evidence established that the parties’ Settlement Agreement could not be performed and that the Settlement Agreement was unenforceable. 29. The credible testimony and evidence of record is insufficient and fails to support a finding that Respondent Showcase Custom Homes Inc (fn) had any relationship to the construction, sale, or performance of corrective work on the Complainant’s residence. 30. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondents were advised that in the event of a finding of a violation against one of the Respondents, that the Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent M and M Development Group LLC (LLC) and said notice revealed that there are two complaints on the Registrar of Contractors’ current record regarding Respondent M and M Development Group LLC (LLC). Therefore, the prior record of Respondent M and M Development Group LLC (LLC) is properly deemed to be neither bad nor good and thus, is not viewed as a matter in mitigation or aggravation in this matter. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondents violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that Respondent Showcase Custom Homes Inc (fn) violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not support a finding that Respondent Showcase Custom Homes Inc. (fn) violated the provisions of A.R.S. § 32-1154 (A), as charged in the Citation. 5. Credible testimony and evidence supported findings which establish that Respondent M and M Development Group LLC (LLC) violated the charged provisions of A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Proper display of license number), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed Orders 1. In view of the forgoing it is recommended that the Citation, together with the Complaint upon which it is based, against Respondent Showcase Custom Homes Inc. (fn) (ROC Case Number 2009-64259294 formerly 09-6425) be dismissed. 2. In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order that the Class B License (No. 214145) of Respondent M and M Development Group LLC (LLC) be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid restitution to the Complainant in sum of $550.00 for the Complainant’s previous payment of one half the cost of the replacement of the roof tile on the Complainant’s front porch roof and that Respondent M and M Development LLC (LLC) has fully reimbursed the Complainant for the cost of having a properly licensed contractor correct the water damage in the hallway ceiling area of the Complainant’s residence. It is further recommended that if Respondent M and M Development Group LLC (LLC) properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that Citation and Complaint against Respondent M and M Development Group LLC (LLC) be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent M and M Development Group LLC (LLC) pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent M and M Development Group LLC (LLC) to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent M and M Development Group LLC (LLC)’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent M and M Development Group LLC (LLC), as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, May 19, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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