ALJDEC decisions subject to certification as final

2014A-4351-ROC · Registrar of Contractors · 2015-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 2015 APPEARANCES: Complainant Dennis Cruikshank appeared on his own behalf. Respondent Magic Homes LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.285586-R to Magic Homes LLC (“Respondent”). On December 23, 2014, the Registrar received a Complaint against Respondent from Dennis Cruikshank alleging that Respondent failed to complete several items related to the construction of a new home. Included in the Complaint was the following: Concrete driveway, short paid $1,400. to Mancuso Concrete . . . Contractor has not installed the closet doors. Base trim missing, next to fireplace. Contractor has not provided Energy Star testing and certification. I need lien releases . . . .

After the Registrar assigned the Complaint to an investigator, the investigator issued a Directive from the Registrar (“Directive”) on February 2, 2015, that provided as follows: Complaint Item 3: Base trim missing near fireplace. Investigator’s Observation: Baseboard missing left of fireplace RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. Governing Rule: Workmanship Rule: ARS 32-1154-A(3) namely AAC R4-9-108

Complaint Item 4: Contractor has not provided Energy Star testing and certification. Investigator’s Observation: RESPONDENT SHOULD PROVIDE CERTIFICATION Governing Rule: Industry Standard: Common industry practice.

Complaint Item 5: Need lien releases. Investigator’s Observation: RESPONDENT SHOULD PROPERLY PROVIDE ALL APPROPRIATE LIEN RELEASES Governing Rule: Industry Standard: Common industry practice.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant testified at the hearing that the three items included in the Directive from the Registrar had been corrected. On May 18, 2015, the Registrar issued a Citation to Respondent charging a possible violation of A.A.C. R4-9-108, and therefore A.R.S. § 32- 1154(A)(3). At the hearing in this matter, Complainant did not request the investigator appear to testify because he did not agree with the investigator’s conclusion as to the concrete driveway and closet doors. Complainant testified that he had ordered the closet doors, but that they had never been received or installed. Respondent stated in its response to the Citation that it had installed closet doors in accordance with the plans, but that Complainant did not like the doors and wanted different doors that were not a part of the contract. Complainant did not offer any evidence related to this matter other than his assertion that he did not receive the closet doors he requested. Complainant testified that Respondent was to have paid for the damaged section of concrete at the top of the driveway and a smashed section at the bottom of the driveway. Respondent stated in its response to the Citation that Complainant agreed, as evidenced by a signed letter, that Respondent would pay for the top part of the driveway that was damaged by a subcontractor and that Complainant would pay for any additional concrete work he wanted done. The September 18, 2014 letter signed by Complainant and a representative of Respondent read as follows: Magic Homes agrees to replace the damaged concrete at the top of the driveway at 2524 Smoketree Avenue and the smashed section below within 30 days for notification of owner. Magic Homes will also help coordinate with the Driveway Subcontractor, Mancuso Concrete, for an additional 10’ of concrete from the existing point to the bottom of the driveway with appropriate city approved turn downs. Denny will reimburse concrete subcontractor the additional concrete and turn down.

While Complainant argued that Respondent agreed to pay for the repair of the top part of the driveway and a smashed section at the bottom of the driveway, the plain language of the agreement provides that Respondent would replace the damaged concrete at the top of the driveway and that it would “help coordinate” additional concrete work at the bottom of the driveway. There was no agreement or reference to Respondent paying for any repair or additional work to the bottom of the driveway. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 27, 2015. Such prior License record reflects that Respondent’s License No. B.285586-R was suspended from September 21, 2014, through September 23, 2014, due to lack of bond and was voluntarily cancelled on June 25, 2015. Such prior License record also reflects that are nine open complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The voluntarily cancelled status of Respondent’s license does not preclude Complainant from pursuing an administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[1] 3. Complainant bears the burden of proof to establish Respondent’s statutory violations 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 failed to establish that Respondent was contractually obligated to pay for the concrete work at the bottom of the driveway or had otherwise agreed to pay for the work. The agreement in evidence references only the obligation to pay for the concrete repair work at the top of the driveway. 5. Complainant failed to establish that Respondent had failed to install the closet doors in accordance with the contract. 6. Complainant agreed the items required in the Directive from the Registrar had been corrected. 7. Therefore, Complainant failed to establish Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108,[2] and therefore A.R.S. § 32-1154(A)(3). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the Complaint filed by Dennis Cruikshank. 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, October 27, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(C), which provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [2] 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.” 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.”

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