ALJDEC decisions subject to certification as final

2015A-4341-ROC · Registrar of Contractors · 2016-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Myra Baum,

COMPLAINANT,

v.

Pinnacle Peak Custom Homes Corp,

License No. 159830

RESPONDENT.

No. 2015A-4341-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27 and 28, 2016

APPEARANCES: On September 27th, Tom Horne, Attorney for Complainant; Myra Baum, Complainant; Paul Frame, Attorney for Respondent; Sam and Jenell Wing, Respondent’s representatives; Matt Gunstra, Registrar of Contractors Investigator; Allen Blaker, Kerry Barton, Robert Perez, Jr., Mark Wickey, Leah Wickey, witnesses; Ashley Franco, observer

On September 28th, Tom Horne, Attorney for Complainant; Myra Baum, Complainant; Paul Frame, Attorney for Respondent; Sam and Jenell Wing, Respondent’s representatives; Allen Blaker, Ed Wickey, Brett Campos, Michael Lutz, Casey Reppas, Steve Gallant, Wally Vance, Alexander Cohen, witnesses; Blake Moscatello and Ashley Franco, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

FINDINGS OF FACT

On or about October 22, 2014, the parties in this matter entered into a contract wherein Respondent would remodel Complainant’s home. On October 9, 2015, Complainant submitted a complaint regarding the project to the Registrar of Contractors. In the complaint, Complainant alleged that Respondent abandoned the project, performed poor workmanship, and money issues.

After a job site inspection, Registrar of Contractors Investigator Matt Gunstra issued a Directive from the Registrar directing Respondent to complete or correct the following items:

Door activated light control at coat closet and bedroom has damaged wood at door jamb

Exterior door in garage is not installed level

Dryer vent is not installed in location called for on city approved building plans

Door bell chime does not sound like it is functioning per manufacturer design. Respondent to service manufacturer’s warranty as applicable.

Pocket door at bathroom does not slide smoothly

Shower door installed in guest bathroom is not a swing door as shown on city approved building plans

Shower tile needs caulked/sealed to wall at perimeter in guest bathroom

Pantry door swing is not per city approved building plan

Master bathroom vanity knee space drawer is not recessed per the cabinet layout

City approved building plans show a note calling for a new electric panel and the existing panel is in place.

Exterior door at master bedroom shows daylight at the weather seal

Exterior door latch at master bedroom rubs the wall when closed

Respondent shall complete project per original contract agreement, properly executed

change orders, verbal agreements, approved plans, local building codes and manufacturer’s installation instructions.

Investigator Gunstra also issued warning letters to Respondent regarding aiding or abetting unlicensed contractors and the minimum elements of a contract.

The work on the Directive was not completed by the time allowed. Therefore, the Citation in this matter alleged potential violations of Arizona Revised Statute (“A.R.S.”) § 32-1154(A)(2)(failure to follow the plans and specifications), (3)(poor workmanship), (9)(aiding and abetting and unlicensed contractor), and (22)(failure to complete work ordered in the Directive).

For its defense, Respondent argued that the plans, which were provided by Complainant’s architect, were always understood to be “provisional” and Complainant made changes repeatedly to them, which caused several delays. Respondent also argued that Complainant refused to allow them access to the home and disrupted progress in other ways.

Complainant’s testimony and evidence was not convincing or credible, in part because her own former assistant testified that he was present when Complainant made her own changes to the design of the kitchen. He also testified that Complainant was at the home all the time and nothing happened there that she did not know about or approve. Nevertheless, Complainant insisted that Respondent made changes on its own and alleged that she was not aware of them. Because Complainant’s testimony was not credible, it cannot be accorded any weight.

Respondent offered credible evidence that delays were due to Complainant’s failure to make timely decisions or to her changing her mind. While some workmanship issues were noted, the work was not complete when Complainant filed the complaint and when she ultimately stopped allowing Respondent to work on the project. Respondent admitted to using unlicensed contractors on the project.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3) (specifically A.A.C. R4-9-108), (9) and (22).

A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. The evidence at hearing did not establish that Respondent departed from the plans without Complainant’s consent. Rather, Complainant’s evidence lacked credibility and could not be accorded any weight at all.

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. While the Registrar of Contractors Investigator found workmanship issues, ultimately it was not established that the issues should be considered a violation because the project was unfinished and Complainant had interfered with its progress.

A.R.S. § 32-1154(A)(9) provides grounds for suspension or revocation of a contractor’s license for aiding and abetting an unlicensed contractor. Respondent admitted to this violation.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. Complainant did not establish a violation of this provision due to her lack of credibility and her denial of access.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. Respondent’s license is current with only one complaint (this one) on record against it.

In this case, the evidence has established that Respondent violated A.R.S. § 32-1154(A)(9) when it utilized an unlicensed contractor in Complainant’s project. However, this violation was not serious enough to warrant the imposition of disciplinary action against Respondent’s license. Therefore, it shall be recommended that the complaint in this matter be dismissed.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be dismissed.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, October 18, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors