ALJDEC decisions subject to certification as final

2015A-4048-ROC · Registrar of Contractors · 2016-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2016, at 8:00 a.m. APPEARANCES: Joseph Tenka (“Complainant”) appeared telephonically on his own behalf; Sun N Fun Construction LLC (“Respondent”) appeared telephonically through James Sullivan, its qualifying party/member (“Mr. Sullivan”). ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On September 17, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.280824-R for residential general contracting to Respondent. 2. On September 22, 2015, Complainant filed a complaint with the Registrar against Respondent, alleging that Respondent had misled him with respect to the cost of the work to be done on a project at his house at 7851 E. Bellevue, Tucson, AZ 85715 (“the project”), and that Respondent was refusing to complete the job. According to the complaint, Complainant had paid Respondent $32,000 of the $38,460 contract amount. 3. The complaint was assigned to the Registrar’s Investigator Frank Grochocki (“Investigator Grochocki”) for investigation. Investigator Grochocki performed a jobsite inspection and on January 6, 2016, issued a Directive on behalf of the Registrar, directing Respondent to remedy by appropriate means the following workmanship deficiencies: 1. Final grade around pool and addition excavations not done.

2. Bath not complete, door, trim, fixtures and flooring not installed, complete as per plans and contract.

3. Respondent to supply light fixtures as per contract.

4. Project not completed, respondent to complete project as per plans, specs, and contract, pass all required inspections by local building authority.

The deadline for Respondent to comply with the January 6, 2016 Directive was January 28, 2016, at 5:00 p.m. 4. Complainant eventually requested a hearing on the complaint. 5. On March 2, 2016, the Registrar issued a Citation and Complaint against Respondent’s contractor’s license, charging cause to discipline the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. Respondent filed a timely written answer to the Citation, denying any cause to discipline its license and affirmatively alleging that Complainant had refused to provide reasonable access for it to comply with the January 16, 2016 Directive. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A hearing was held on May 4, 2016, at which the parties appeared telephonically from the Registrar’s Tucson office. Complainant testified and presented the testimony of his wife, Avelita Tenka (“Mrs. Tenka”). Respondent presented the testimony of its qualifying party/member, Mr. Sullivan, and its employees, Steven Fay (“Mr. Fay”) and Bernie Marin (“Mr. Marin”). Investigator Grochocki also testified. Hearing Evidence 9. Investigator Grochocki testified that he performed a prehearing inspection at Complainant’s residence on April 24, 2016. Item Nos. 1, 2, and 3 on the January 6, 2016 Directive had been completed and complied with the Registrar’s and industry workmanship standards. 10. Investigator Grochocki testified that Item No. 4 on the Directive had not been completed, however, because the project had not passed the local building authority’s final inspection. 11. The project involved renovating a former workshop into livable space. Mr. Sullivan testified that Respondent’s contract did not include a water heater, a shower, or a vanity. Nonetheless, to comply with the Directive and to enable the project to pass inspection, Respondent installed a water heater, shower, and water heater. Mr. Sullivan testified that so far, the project has cost Respondent $5,000.00 out-of-pocket. 12. Mr. Sullivan testified that Respondent also had to move a stove to have the project pass inspection. Mr. Sullivan testified that everytime Respondent had scheduled a final inspection, during the time that Respondent’s employee was waiting for the inspector, Complainant or Mrs. Tenka had kicked Respondent’s employee off of the property. 13. Mr. Fay testified that on Monday, May 2, 2016, he arrived at Complainant’s house at 8:20 a.m. to wait for the inspector. At 9:30 or 9:45 a.m., before the inspector arrived, Complainant and Mrs. Tenka told him to leave because they did not want him on the property. 14. Complainant testified that he asked Mr. Fay to leave at about 10:10 a.m. on May 2, 2016. Mrs. Tenka testified that she keeps the gate to the yard of the residence locked and that on Monday, May 2, 2016, she and her husband planned to travel to Phoenix to go to court. Mrs. Tenka testified that she needs at least two weeks’ notice of any scheduled inspections. 15. Mr. Marin testified that he goes to the same church as Mrs. Tenka’s son-in-law. Mr. Marin testified that the son-in-law said that Complainant and Mrs. Tenka did not intend to pay Respondent any more for the job. / / / / / / / / / / / / CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] 4. Respondent has complied with the January 6, 2016 Directive in all respects except having the project pass the local building authority’s final inspection. Respondent established that Complainant and Mrs. Tenka unreasonably limited the inspector’s and Respondent’s access to the project to arrange for a final inspection. Therefore, Complainant did not establish cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[6] namely A.A.C. R4-9-108,[7] and A.R.S. § 32- 1154(A)(22).[8] / / / / / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Joseph Tenka’s complaint in Case No. 2015-4048 against Respondent Sun N Fun Construction, LLC’s License No. B.280824-R shall be dismissed. 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 five days from the date of that certification. Done this day, May 9, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(A). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] 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.” [7] 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.” [8] 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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