ALJDEC decisions subject to certification as final

2014A-1159-ROC · Registrar of Contractors · 2015-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2015, at 8:00 a.m. APPEARANCES: Steve and Debbie Torina (hereinafter “Complainants”) appeared through Debbie Torina. Magic Homes LLC (hereinafter “Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated Rule R4-9-108, entitled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby violated A.R.S. § 32-1154(A)(3) as alleged by Complainants and as cited by the Registrar of Contractors. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of a Class B (No. 285586) License issued by the Registrar of Contractors. This is a residential matter where on or about June 27, 2013, Complainants contracted with Respondent for the construction of a new residence at 3440 Saratoga Ave., Lake Havasu City, Arizona 86406 (hereinafter “residence”). Respondent constructed and Complainants moved into the residence on December 24, 2013. The Complainants noticed numerous stains on the concrete for the new residence and were dissatisfied with the installation of the wall air conditioning unit in the garage. Complainants notified Respondent of their dissatisfaction and Respondent agreed to “make everything right” by correcting the stained concrete and air conditioning unit installation to Complainants’ satisfaction. Respondent failed to comply with its agreement to correct the stained concrete and garage air conditioning unit installation and on March 26, 2014, Complainants filed a Complaint against Respondent with the Registrar of Contractors (hereinafter “the Registrar”). Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainants’ residence on or about April 28, 2014. On June 20, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. The Complainant’s original complaint submitted to the ROC on March 25, 2014, listed two allegations involving the garage A/C unit. The first allegation alleged that the installed unit was [an] inferior unit and not as discussed. The second allegation states that the “safety” modifications are inadequate. There is insufficient evidence and or standards to support Complainants two allegations, however, the Complainant sent this Investigator an email after the inspection alleging additionally that the A/C unit is not installed according to the manufacturer’s requirements: A/C top and side lovers are obstructed. A/C unit not properly flashed on the bottom.

ROC Opinion: the Complainant will send in an addendum to the original complaint to request that these issues be included/added as the Respondent is entitled, by law to be pre-notified prior to an inspection of all complaint issues. With that being said I will state that the Complainant is correct and that the A/C unit exterior louvers are obstructed and not in accordance with the manufacturers installation requirements. If the Complainant amends the complaint I will rule in favor of the Complainant on this issue….

2. Did not clean stains in front patio and garage concrete floors. ROC: Agreed with Complainant, Respondent should properly clean/remove the “stains” on the front patio and garage concrete floors.

Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainants filed a civil action against Respondent with Lake Havasu Consolidated Courts, County of Mohave, State of Arizona. On May 5, 2015, Complainants obtained a civil judgment in the amount of $6,150.00, against Respondent for the construction deficiencies in their residence.[1] Debbie Torina (hereinafter “Ms. Torina”) testified that Complainants have been unable to satisfy their judgment against Respondent. Ms. Torina reviewed photographs of the staining on the concrete at her residence and the water damage that has occurred in Complainants’ garage as a result of the improper installation of the wall A/C unit in the garage.[2] Ms. Torina testified that Complainants had obtained bids from a licensed contractor for the correction of the stained concrete. Ms. Torina said that the estimated cost for the proper correction of the stained concrete is the sum of $6,124.34.[3] Ms. Torina testified that Complainants have suffered extensive damage in the interior of their garage as a result of the improper installation of the wall A/C unit in the garage. Ms. Torina said that she had obtained a bid from a licensed contractor to remove the wall A/C unit and properly correct the water damaged drywall in the garage for the sum of $500.00. Ms. Torina’s testimony is found to be credible. Steve Torina testified that he agreed with Ms. Torina’s testimony. On May 18, 2015, the Registrar issued a Citation for Alleged Violation of Rule R4-9-108 to Respondent. That Citation contained only one charge, in particular: “A violation of Rule 4-9-108, titled “Minimum construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32- 1154(A)(3). The citation did not cite Respondent for failure to take corrective action. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on September 15, 2015. Such prior license record reflects that License No. B.285586-R of Magic Homes LLC was voluntarily cancelled on June 25, 2015. CONCLUSIONS OF LAW The inactive status of Respondent’s license does not deprive Complainants of their right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainants’ complaint. See A.R.S. § 32-1154(C). This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1154(A). The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Complainants established by a preponderance of the evidence that the stains on the concrete at their residence and the installation of the wall-mounted A/C unit in their garage failed to comply with minimum workmanship standards. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3),[4] namely, A.A.C. R4-9-108.[5] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. B.285586-R of Magic Homes LLC shall be revoked. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification Done this day, September 15, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit C-7 (05/05/15 Civil Judgment). [2] See Exhibit C-4 (Photographs). [3] See Exhibit C-3 (Bid from Arizona Decorative Concrete License No. 239290) [4] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [5] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

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