ALJDEC decisions subject to certification as final

2014A-1754-ROC · Registrar of Contractors · 2015-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2015, at 8:00 a.m. APPEARANCES: Jeffrey Fager and Lauren Fager (hereinafter “Complainants”) appeared through Lauren Fager. Robco Inc. (hereinafter “Respondent” or “Robco”) was represented by its attorney, Matt Meaker, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(3) as alleged by Complainants and as cited by the Registrar of Contractors (hereinafter “Registrar”). 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 License No. CR61.153618-D issued by the Registrar. Respondent’s license was issued on March 21, 2000, and is current. Complainants purchased an existing residence located at 19433 North 3rd Drive, Phoenix, Arizona 85027, from an entity identified as Just Flippin’ Real Estate Properties and Investments (hereinafter “Just Flippin”). Just Flippin is owned and operated by Robert Lee Oliver.[1] The same Robert Lee Oliver is listed as an officer of Robco.[2] The seller’s realtor provided Complainants with a document containing Robco’s name and license number that indicated that Robco had performed $47,938.00 worth of remodeling work on the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027.[3] On or about May 2, 2012, Complainants filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainants’ residence. On September 23, 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:

Complaint #5) No new interior doors: Complaint #6) Showers are not custom tile: Complaint #7) Paint peeling in both baths: Complaint #8) tile in great room, living area are crooked and grout is coming out of several areas.

Respondent refused to comply with the written Directive. Respondent asserted that it had not performed any work at 19433 North 3rd Drive, Phoenix, Arizona 85027. After Respondent refused to comply with the Registrar’s written Directive, Complainants requested that the Registrar to issue a Citation against Respondent’s license. On May 19, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: Charge 1: Charge 2: 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).[4]

Lauren Fager (hereinafter “Ms. Fager) testified that the interior doors in the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027 were repaired doors rather than new doors. Ms. Fager said that the floor tile grout was coming out and that the paint on the bathroom ceilings was peeling. Ms. Fager said that Just Flippin and Robco use the same business address and are run by the same man. Ms. Fager said that she first heard the name Robco Inc. when the paperwork for the appraisal of the property was performed. Ms. Fager acknowledged that Complainants had no contract with Robco and paid Robco no money. Ms. Fager acknowledged that the only paperwork with Robco’s name on it was the upgrade list prepared by the seller’s realtor. Jeffrey Fager (hereinafter “Mr. Fager”) that he would like the complaints set forth in the Complaint to be resolved. Mr. Fager said that he could not lock the front door and that he had to replace it. Mr. Fager said that the tile grout is coming out and that the tiles were loose and cracked in the residence. Mr. Fager said that the interior doors were repaired doors rather than new doors. Mr. Fager said that he heard Robco’s name from the seller’s realtor, who was also Robert Lee Oliver’s daughter. Mr. Fager acknowledged that he did not know who or what entity performed construction work at the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027. Mr. Fager acknowledged that Complainants purchased the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027 from Just Flippin. Mr. Fager said that he assumed the remodeling work on the residence had been performed by Robco because if Robco had not performed the remodeling work, then Robert Lee Oliver had sixteen months in which to provide Complainants with the name of the contractor that did perform the remodeling work on the residence. Mr. Fager acknowledged that Complainants did not have a contract with Robco and that Complainants had never paid Robco any money. The assigned Registrar Investigator, Steve Klein (hereinafter “Investigator Klein”) testified that he had performed the initial onsite inspection on August 13, 2014. Investigator Kline said that he had prepared the written Directive. Investigator Klein said that he performed a second inspection on November 21, 2014. Investigator Klein said that Respondent has performed no corrective action and that there had been no change. Investigator Klein testified that it was obvious that the interior doors were not new doors and that the tile grout was coming loose and falling out. Investigator Klein said that he also observed paint peeling in the bathroom that required touch-up. Investigator Klein testified that he had no personal knowledge as to whether Robco had performed any work at 19433 North 3rd Drive, Phoenix, Arizona 85027. Investigator Klein testified that he re-inspected Complainants’ property the day before the hearing. Investigator Klein said that everything looked the same. Investigator Klein said that he observed one cracked floor tile and loose grout throughout the floor. Investigator Klein said he did not know first-hand who or what entity performed the original construction work on Complainants’ residence. Investigator Klein’s testimony is found to be credible. Maggie Diamond (hereinafter “Ms. Diamond”) testified that she had been a licensed realtor for over 35 years. Ms. Diamond said that she was involved as a realtor in the sale of the property at 19433 North 3rd Drive, Phoenix, Arizona 85027. Ms. Diamond said that she was familiar with the document containing Robco’s name and license number indicating that Robco had performed $47,938.00 worth of remodeling work on the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027. Ms. Diamond said that the document was submitted during the appraisal process. Ms. Diamond said that Robco was not the seller of the property. Ms. Diamond said that Just Flippin was the seller of the property. Robert Oliver (hereinafter “Mr. Oliver”) testified that Robco did not perform any work on the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027, and that Robco had no contract to perform any work on the construction project. Mr. Oliver testified that he is the owner of Robco. Mr. Oliver said that he has owned Robco for 15 years and that Robco performs small remodeling jobs. Mr. Oliver said that Robco performed no work, prepared no proposals, and received no compensation for any work performed at 19433 North 3rd Drive, Phoenix, Arizona 85027. Mr. Oliver denied that he had ever personally performed any construction work at the residence. Mr. Oliver testified that his connection to the property is that he owns Just Flippin. Mr. Oliver said that Just Flippin “flips” a few properties. Mr. Oliver said that he bought and sold the property at 19433 North 3rd Drive, Phoenix, Arizona 85027 as Just Flippin. Mr. Oliver said that Robco had never performed any work for Just Flippin. Mr. Oliver testified that the document containing Robco’s name and license number indicating that Robco had performed $47,938.00 worth of remodeling work on the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027, had been prepared by his real estate agent. Mr. Oliver said that his daughter was his agent at the time the document was created and that he was out of town. Mr. Oliver said that she called him and said that she was getting pressure from the buyer’s agent asking what kind of work was performed on the property. Mr. Oliver said that he told her the amount work that had been performed and asked her to place the list on his letterhead. Mr. Oliver said that he meant to have the list placed on Just Flippin’s letterhead, not Robco’s. Mr. Oliver said that Robco’s only involvement in this project was his daughter placing the wrong letterhead on the list of work performed on the residence. Mr. Oliver said that the document was created in error. Mr. Oliver acknowledged that the document was confusing. Mr. Oliver testified that construction work on the residence at 19433 North 3rd Drive, Phoenix, Arizona was performed by various subcontractors on behalf of Just Flippin. Mr. Oliver said that Robco did not comply with the Directive because it did not have a contract with Complainants and had performed no work at the residence. Mr. Oliver testified that “there were a few different” contractors who had performed work at the residence. Mr. Oliver said that “All About Kitchens and Baths” performed the construction work in the kitchen and baths. Mr. Oliver said that “Tilton Electric” had performed the electrical work on the residence. Mr. Oliver said that “Majero Painting” performed the painting. Mr. Oliver said that some of the work, including the work on the doors, was performed by a handyman. Mr. Oliver said that he had never heard from Complainants until they filed a complaint against Robco. Mr. Oliver said that he would have been more than happy in the capacity of Just Flippin to provide Complainants with a list of who did the work on their residence. Mr. Oliver said that he never received a request from Complainants until he received the complaint against Robco. Mr. Oliver acknowledged that he is the 100% owner of Robco and Just Flippin. CONCLUSIONS OF LAW 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). Just Flippin and Robco are separate legal entities that are owned by the same individual. However, the preponderance of the credible evidence was insufficient and failed to establish that Robco or Mr. Oliver performed any construction work at Complainants’ residence. The only evidence connecting Robco to Complainants’ residence is the document containing Robco’s name and license number indicating that Robco had performed $47,938.00 worth of remodeling work on the residence at 19433 North 3rd Drive, Phoenix, Arizona 85027, that was prepared by Just Flippin’s real estate agent for the sale of the residence. The single document was not sufficient to support a finding that Robco performed any work on the Complainants’ residence. This Tribunal concludes that Complainants failed to prove by a preponderance of the evidence that Robco is responsible for the workmanship on their residence. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, October 9, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Electronic Arizona Corporation Commission Records/Arizona Secretary of State records. [2] See Electronic Arizona Registrar of Contractors’ license information or Robco Inc. [3] See Exhibit 8 (List of Repairs). [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. 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