ALJDEC decisions subject to certification as final

2016A-1110-ROC · Registrar of Contractors · 2016-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2016 APPEARANCES: Complainant Michael J Lazovich appeared on his own behalf. Ed Davis, Owner and Qualifying Party, appeared on behalf of Respondent Davis Construction LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Davis Construction LLC is the holder of License No. 295230 issued by the Arizona Registrar of Contractors (Registrar). On or about March 16, 2016, Ed Davis approached Complainant Michael J. Lazovich’s home and stated he had just finished a job nearby and had extra materials. Mr. Davis offered to use pave Complainant’s driveway for $28.00 a square yard. After completing the job, Mr. Davis requested payment of $7400.00. Linda Lazovich told Respondent she did not agree to pay that much and she did not have that much money to pay Respondent. Ms. Lazovich paid Respondent $2500.00 in cash and wrote a check for $300.00. On or about April 4, 2016, Complainant filed a complaint with the Registrar assigned the complaint to Investigator Arco Houston. On or about May 19, 2016, Investigator Houston performed a jobsite inspection. Following the jobsite inspection, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2);[1] A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3);[2] and A.R.S. § 32- 1154(A)(12),[3] namely A.R.S. § 32-1158(B).[4] Investigator Houston testified that he found no permit for the work had been pulled for the work and no contract was executed prior to the work being performed. Investigator Houston testified that the failure to obtain a permit constituted a failure to perform the work in a professional and workmanlike manner. Ms. Lazovich testified that they were not happy with the work done by Respondent because he did not complete the work agreed upon. Complainant stated he was fined by the city for not having a permit and then had to pay for a permit. Mr. Davis testified that he offered to return Complainant the money he paid on the project. Mr. Davis stated he was not in the state at the time of the hearing and the money may have been returned for some reason, but that he would follow up and send the money again. Mr. Davis did not deny any of the allegations made against Respondent. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 1, 2016. Such prior License record reflects that Respondent’s License No. 295230 was first issued on December 12, 2014, and was current. The Registrar’s public website indicates that one prior complaint resulted in discipline, one prior complaint was resolved/settled/withdrawn, and there were three currently 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. 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). 3. The credible evidence presented at hearing established that Respondent did not obtain a permit prior to performing the work on the project. Thus, Complainant established that Respondent disregarded the building codes of a political subdivision of the state in violation of A.R.S. § 32-1154(A)(2). 4. No evidence was submitted to establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3). 5. The credible evidence presented at hearing established that Respondent did not provide Complainant a contract prior to performing the work in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Davis Construction LLC’s License No: 295230 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, September 1, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [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)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [4] A.R.S. § 32-1158(B) sets forth the minimum elements of a contract as follows: B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

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