ALJDEC decisions subject to certification as final

2016A-123-ROC · Registrar of Contractors · 2016-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2016, at 8:00 a.m. APPEARANCES: Alexandra Anderson (“Complainant”) appeared on her own behalf; Home Lift Now LLC (“Respondent”) was represented by Thomas C. Horne, Esq., Horne Slaton PLLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On or about December 26, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61.302446-D for carpentry, remodeling, and repair to Respondent. On or about January 12, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had committed 24 specified workmanship deficiencies or departures from plan in its performance of a contract to remodel her kitchen at 6701 E. Eugie Terrace, Scottsdale, Arizona 85254. The Registrar assigned the complaint to Investigator Steve Klein (“Investigator Klein”) for investigation. Investigator Klein contacted the parties and performed a jobsite inspection. On March 11, 2016, Investigator Klein on behalf of the Registrar issued a Directive that required Respondent to perform the following remedial action on or before 5:00 p.m. on March 30, 2016: Respondent shall complete project per contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Respondent did not perform any additional work on the project and Complainant requested an administrative hearing. On April 13, 2016, the Registrar issued a Citation against Respondent’s license, charging violations of A.R.S. §§ 32-1154(A)(8) and 32-1154(A)(22). Respondent timely answered the Citation and Complaint, denying any statutory violation and affirmatively alleging that Complainant had refused to allow reasonable access for it to complete the project or to comply with the Registrar’s Directive. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on June 24, 2016. Complainant testified, presented the testimony of her son Riko Anderson, and submitted 2 exhibits. Respondent presented the testimony of its member, Brandon Lederer (“Mr. Lederer”), and Project Manager, Mark Behlke, and submitted 14 exhibits. Investigator Klein also testified. Additional Hearing Evidence Investigator Klein testified that the job was not complete and that Complainant had not allowed Respondent on her property at the time of his March 10, 2016 jobsite inspection. Mr. Lederer testified that Complainant contacted him to correct a badly done remodel of her kitchen. On or about September 24, 2015, Complainant accepted Respondent’s proposal to remodel her kitchen for the total amount of $13,875.00, for which she would need financing.[1] Complainant submitted her computer assisted drawings for the remodeling of her kitchen as originally planned.[2] When Complainant applied for financing, the lender only approved a loan of $5,000.00 for the remodel. The parties subsequently agreed that Respondent would perform a remodel with a substantially scaled back scope.[3] Mr. Lederer testified that although a kitchen remodel of the scale contemplated usually took 21 days, because Complainant’s son was about to be deployed to Afghanistan, Respondent agreed to provide a functional kitchen in 10 days so that Complainant could throw her son a party. Mr. Lederer testified that Complainant agreed that Respondent could complete the remodel after the party. Mr. Lederer credibly testified that Complainant subsequently refused to provide access unless Respondent completed the original scope of work under the $13,875.00 contract. Mr. Lederer submitted numerous emails that of his request for access to perform repairs.[4] Complainant denied that she refused to provide reasonable access and testified that Respondent had refused to correct or complete items that she felt needed correction or completion, including replacing and granite countertop and providing additional cabinets. Respondent submitted evidence that it had offered to return to Complainant $5,000.00 and then to return $6,000.00, which included an additional $1,000.00 for the cost of the granite countertops. Although Complainant initially accepted the $5,000.00 settlement offer, she subsequently rescinded her acceptance.[5] Complainant disputed the charge by the financing company and had the $5,000.00 charge for the kitchen remodel reversed. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[6] Complainant bears the burden of proof to establish Respondent’s contracting law violations by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] Respondent acknowledged that it did not complete the reduced scope of the kitchen remodel project at Complainant’s house. However, Respondent established that Complainant did not allow it reasonable access to complete the project and refused numerous offers to return her money. Because Complainant’s refusal to provide reasonable access for Respondent to complete the project provides a legal justification for its failure to comply with the Registrar’s Directive, Complainant has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(22).[9] Complainant’s refusal to allow Respondent to complete the project or to return her money also is a legal justification for its failure to complete the kitchen remodeling project for the price stated in its contract for the reduced scope of work. Therefore, Complainant also has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(8).[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the final order in this matter, Complainant Alexandra Anderson’s Complaint in Case No. 2016-123 against Respondent Home Lift Now LLC’s License No. CR61.302446-D shall be closed for denial of access. 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, July 11, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Respondent’s Exhibit 1. [2] See Complainant’s exhibit A. [3] See Respondent’s Exhibit 2. [4] See Respondent’s Exhibits 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. [5] See Respondent’s Exhibit 2. [6] See 32-1101 et seq. [7] 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). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] 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.” [10] A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

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