ALJDEC decisions subject to certification as final

2010A-1081839-ROC · Registrar of Contractors · 2011-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2011 APPEARANCES: Complainant appeared on his own behalf; Attorney Michael J. Harper appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________

The issue presented is whether Respondent AMF Construction LLC (License No. 183290) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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 Respondent, AMF Construction LLC holds License No. 183290, a Class B contracting license issued by the Registrar of Contractors (“ROC”). Anthony Flores is a member of AMF Construction LLC and is Respondent’s qualifying party. Complainant Roger J. Abdin entered a contract with Respondent in which Respondent agreed to construct a log-cabin home for Complainant. See Exhibit R1. The home is located at Rim Trail, Lot 24, Meadow Lane, near Payson, Arizona. On November 29, 2009, Gila County issued a Certificate of Occupancy for the home. See Exhibit R5. On December 6, 2009, Complainant prepared a “punch list” of items that required completion or repair. See Exhibit R6. On December 16, 2009, Respondent sent Complainant an invoice for the balance due. See Exhibit R7. On December 20, 2009, Complainant sent Respondent a letter “command[ing] you to seize [sic] and desist” work at the home. The letter informed Respondent that Complainant had contacted the Payson Police and that Mr. Flores would be arrested for trespassing if he came on Respondent’s property. See Exhibit R8. On December 20, 2009, Complainant signed a Complaint against Respondent that was received by ROC on December 22, 2009 (the “First Complaint”). See Exhibit R9 (First Complaint and other documentation). In the First Complaint, Complainant listed 25 items that he alleged were deficiencies. None of these 25 items was on the punch list. Respondent was not afforded an opportunity to inspect the work that Complainant alleged was defective within 15 days of the First Complaint being filed. Respondent filed an Answer to the First Complaint asserting that he had not abandoned the project and that Complainant still had Respondent’s tools and equipment at the home. See Exhibit R11. On February 12, 2010, ROC inspector Tom Sandoval conducted an inspection at the home. On February 23, 2010, Mr. Sandoval issued a Corrective Work Order (the “First CWO”) addressing the 25 items listed in the First Complaint and 2 additional items that were raised by Complainant at the inspection. See Exhibit R15. In the First CWO, Mr. Sandoval instructed Respondent to correct or finish items 3, 7, 9, 10, 11, 13, 14, 15, 16, and 19 from the First Complaint and items 1 and 2 that were added at the inspection on February 23, 2010. See Exhibit R15. In a certified letter dated March 2, 2010, Mr. Flores requested that Complainant provide Respondent with access to the home so that Respondent could begin making the corrections required by the First CWO. See Exhibit R17. In a letter dated March 10, 2010, Complainant informed Mr. Flores that Respondent would not be permitted to work at the home and that the “current contractor” had pointed out additional faulty workmanship. See Exhibit R18.

In a second letter that Complainant sent to Mr. Sandoval dated March 10, 2010, Complainant wrote that Respondent had no intention of taking the required corrective action and that Complainant did not want Respondent on his property. Complainant then requested that a Citation be issued against Respondent. See Exhibit R19. In a letter dated March 18, 2010, Mr. Flores requested that Complainant provide access to the home so that Mr. Flores could inspect the alleged deficiencies. See Exhibit R20. Because Mr. Flores did not receive a response to the letter dated March 18, 2010, he left Complainant a voicemail requesting access to the home. Complainant did not respond to the voicemail and Mr. Flores sent a copy of the March 18, 2010 letter to Complainant via certified mail. Complainant signed for that letter on March 22, 2010. See Exhibit R20. In a letter dated March 30, 2010, Respondent requested that ROC dismiss the First Complaint because Complainant had refused to provide Respondent access to the home. See Exhibit R21. In a letter dated April 1, 2010, Complainant informed ROC that he had discovered other alleged deficiencies at the home. ROC treated this letter as an additional complaint (the “Second Complaint”). See Exhibit R23. On April 15, 2010, Respondent filed an answer to the Second Complaint in which Respondent also again requested that the matter be dismissed based on Complainant’s refusal to allow Respondent access to the home. See Exhibit R25. In a letter dated April 23, 2010, ROC informed Respondent that Complainant had filed a Third Complaint. See Exhibit R26. In a letter dated April 26, 2010, Mr. Flores again requested that Complainant provide Respondent access to inspect the alleged deficiencies. See Exhibit R27. Complainant did not respond to Respondent’s letter dated April 26, 2010. In a letter dated May 17, 2010, Respondent filed with ROC a “Formal Motion to Dismiss” based on Complainant’s refusal to allow Respondent access to the home. See Exhibit R28. On June 4, 2010, Mr. Sandoval conducted a second inspection at the home. On June 18, 2010, Mr. Sandoval issued a Second CWO. In the Second CWO, Mr. Sandoval addressed Complainant’s Second and Third Complaints. Mr. Sandoval determined that only one item, a lack of “chinking” between some logs on lower level of the home, was such that Respondent was required to make a correction. See Exhibit A. In a letter dated June 22, 2010, Mr. Flores requested that Complainant provide access to the home so that Respondent could comply with the Second CWO. On December 9, 2010, ROC issued a Citation and Complaint alleging that Respondent may have violated A.R.S. §§ 32-1154(A)(1), (A)(2), (A)(3), (A)(7) and (A)(23). On March 14, 2011, ROC issued a Notice of Hearing setting the matter for 8:15 a.m. April 26, 2011. The hearing was conducted by web camera with the parties and witnesses appearing in Show Low and the Administrative Law Judge in Phoenix. Complainant appeared and testified on his own behalf; Respondent presented the testimony of Mr. Flores. Mr. Sandoval also testified. Mr. Sandoval provided credible testimony that: a. He conducted a pre-hearing inspection on April 25, 2011; b. Complainant has been unwilling to allow Respondent access to the home and at the pre-hearing inspection, Complainant again expressed his position that he did not want Respondent on the property; c. Respondent had not been allowed access to the home and was consequently not able to inspect the alleged deficiencies as required by statute; d. Mr. Flores had always been willing to have Respondent make the required corrections; e. Of the items from the First CWO that Respondent had been directed to correct, as of April 25, 2011, only items 9, 14 and from the First Complaint, and the 2 items that were added at the inspection on February 23, 2010, had not been repaired by another contractor; f. Item 16 involves the location of a toilet; Mr. Sandoval’s opinion was that the only way to resolve that item was to have a “pony” wall built; g. The “chinking” had not been corrected as of April 25, 2011; h. He has never seen a situation in which the police will watch a contractor perform repairs except when an Order of Protection had been issued; i. ROC will not sit and watch a contractor perform repairs; j. In the construction of new homes it is common to have items that need repair, and it is not appropriate to discipline a contractor when the home owner will not allow access to make any required repairs. Aside from the issues address in the First and Second CWO, Mr. Sandoval found no deficiencies in Respondent’s work Mr. Abdin testified that he had not denied Respondent access to the home and that his letters of denial were intended to convey only that Respondent could not have access unless ROC or the police were present. This testimony is not credible in light of the documentary evidence presented. Mr. Abdin’s credibility is further suspect because he sent ROC a letter stating that Respondent would not make the required repairs despite Mr. Abdin’s knowledge that Respondent had made several attempts to gain access to the home so that it could do the required work. Mr. Abdin acknowledged that there was a financial dispute between the parties, but he denied that that dispute was related to his Complaints. Mr. Flores testified that Respondent had not abandoned the job, but had been denied access to complete the items on the punch list and to perform any corrections ordered by ROC. Respondent had always been willing to make any required repairs. Mr. Abdin presented no plans or specifications that were prepared by, or agreed to by Respondent. Mr. Abdin did refer to drawings prepared by the company that provided the material for the home, which drawings show stone siding on the chimney. Mr. Flores provided credible testimony that Respondent had never agreed to provide stone siding on the chimney and the plans approved by Gila County did not show such siding. CONCLUSIONS OF LAW Complainant bears the burden of proof to show that the alleged violations have occurred. The standard of proof on all issues in this matter is that of a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence 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 (6th ed. 1990). The preponderance of the evidence shows that Respondent has not violated A.R.S. § 32-1154(A)(1) because Respondent has not abandoned the contract or refused to perform. To the contrary, Complainant has consistently rebuffed Respondent’s efforts to come to the home to perform any necessary work. Complainant presented no credible evidence to show that Respondent disregarded or departed from any plans, specifications or building codes. The preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(2). The preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(3). ROC’s Citation and Complaint alleged that Respondent violated A.A.C. R4-9-108, which encompasses the workmanship standards. Although some of Respondent’s work requires completion or correction, Complainant presented no substantial evidence showing that Respondent had violated any workmanship standards. And, because Complainant has not allowed Respondent access to inspect the alleged deficiencies, it would be inappropriate to find a violation even if the existing state of work does not meet the required standards. See A.R.S. § 32-1155. There was no evidence adduced to show that Respondent had committed any fraudulent acts. The preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(7). The preponderance of the evidence shows that Respondent has not violated A.R.S. § 32-1154(A)(23) because Respondent was willing to take the required corrective action, but Complainant would not allow Respondent access to do so. Because Complainant has not met the burden of proof to show that Respondent committed any of the alleged violations, the Citation and Complainant in this matter should be dismissed. RECOMMENDED ORDER IT IS ORDERED that the Citation and Complaint in Case No. 2010- 1081839 shall be dismissed on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the order shall be 40 days from the date of that certification.

Done this day, May 15, 2011.

/s/ Thomas Shedden Thomas Shedden 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