ALJDEC decisions subject to certification as final

2014A-4126-ROC · Registrar of Contractors · 2015-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2015 APPEARANCES: Complainant John Drexler appeared on his own behalf. Respondent Pinewood Construction Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Pinewood Construction Inc. (“Respondent”) is the holder of License No. 214006 issued by the Arizona Registrar of Contractors (“Registrar”). On or about June 27, 2014, Complainant John Drexler (“Complainant”) entered into a contract with Respondent for a remodeling project of Complainant’s home with a total contract price, including change orders, of $54,301.00. At that time the contract was entered, Complainant paid Respondent $28,500.00 as a deposit. Complainant made it clear that he needed the project done by August 2, 2014. On or about August 5, 2014, Complainant paid Respondent $15,981.00. Respondent began work on the project, but did not complete many of the items required. On or about October 9, 2014, the Registrar received a Complaint against Respondent from Complainant alleging Respondent had failed to complete a remodeling project for which it had contracted and had been paid $44,481.00. The Registrar assigned the complaint to Investigator Tom Sandoval. After a jobsite inspection, Investigator Sandoval issued a written directive to Respondent that provided 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. TV was not installed, walls were not patched, textured, or painted at loft area. 2. Walls were not patched, textured, or painted at the living room area. 3. Custom cabinet was built but hole for electrical access was not drilled. 4. Walls were not Textured or painted in basement. 5. Sink not attached to wall at garage. 6. Mirror was not replaced over the sink at garage area. 7. Floors were left full of plaster and paint on the garage floor. 8. Ceiling not textured or painted at the garage basement area. 9. Pavers were not installed under the deck area per contract. 10. Concrete driveway was not installed per contract. 11. Retaining walls were started and not completed and stone added per contract. 12. There was no prep work of filling holes and cracks of house or deck. 13. Painting was not done on house or deck per contract. 14. Plumbing was shown at jobsite the contractor had excavated and cut through the French drain and not repaired or back filled. 15. Site not graded back to original per contract.

Following the issuance of the written directive, Respondent did not make any attempts to do any corrective work. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). The Registrar issued a Notice of Hearing, setting a hearing at 8:00 a.m. on November 5, 2015, at the Office of Administrative Hearings. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on November 5, 2015. Investigator Sandoval testified as to the Registrar’s standards, the jobsite inspection, and the written directive. Complainant presented the testimony of Anna Murphy, testified on his own behalf, and submitted six exhibits. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 25, 2015. Such prior License record reflects that Respondent’s License No. 214006 was first issued on November 24, 2005, and was suspended. It also reflects that there are two open complaints pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 4. Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32- 1154(A)(1).[1] 5. The credible testimony established that the work by Respondent was not in compliance with the Registrar’s workmanship standards, Therefore, Complainant established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[2] 6. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Pinewood Construction Inc.’s License No: 214006. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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 will be 40 days from the date of that certification. Done this day, November 25, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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