ALJDEC decisions subject to certification as final

2016A-1723-ROC · Registrar of Contractors · 2016-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donnie Gene Patrick,

COMPLAINANT,

v.

Diamond B Steel Shades and More Inc.,

License No: 221194

RESPONDENT.

No. 2016A-1723-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 17, 2016

APPEARANCES: Complainant Donnie Gene Patrick appeared and was represented by Doug Newborn. Robert Bishop, Owner, appeared on behalf of Respondent Diamond B Steel Shades and More Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Diamond B Steel Shades and More Inc. (Respondent) is the holder of License No. 221194 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 6, 2016, Donnie Gene Patrick (Complainant) entered into a contract with Respondent to build a large garage on his property. The contract provided that the garage would be 40’ x 43’ with three 10’ x 10’ roll up doors. The contract totaled $9,350.00. A separate copy of the contract was submitted that includes the following notation written in a different color ink: “No Eng. Drawings. Building only will meet Code R.B.” Exhibits C1 and C2.

On or about May 6, 2016, Pima County issued a Stop Work Order on the property. Exhibit C4.

On or about May 20, 2016, the Registrar received a Complaint against Respondent from Complainant alleging Respondent, among other things, did not obtain a permit for the project, built the building without required permits or inspections, exceeded required setbacks, exceeded height restrictions, exceeded allowable lot coverage, and did not provide building plans. Exhibit C5.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 7-29-16.

You are hereby directed to remedy the following violations by the appropriate means:

Respondent shall complete project per contract agreement, properly executed change orders, and local building codes

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

Exhibit C8.

Following the issuance of the written directive, Respondent did not perform any additional work.

The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(2).

At hearing, Investigator Klein testified that it is ultimately the homeowner’s responsibility to obtain a permit prior to work being done. Investigator Klein also stated that during the jobsite inspection, Respondent acknowledged there were no plans or permits on the project.

Complainant testified that he was prepared and willing to pay for drawings and permits, but Respondent did not inform him those were necessary. Complainant stated that Respondent did not let him know the building would be in violation of setback, height, and area restrictions as built. Complainant testified that he had received fines from the county for the violations of the restrictions.

Robert Bishop, Owner, testified on behalf of Respondent that he was aware Complainant had not pulled permits on the project and acknowledged Respondent should not have built the building without those permits in place. Mr. Bishop also admitted that he knew the building as built was in violation of setback, height, and size restrictions, but asserted that the building itself would meet code requirements.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 7, 2016. Such prior License record reflects that Respondent’s License 221194 was issued on September 5, 2006, and is current with one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that the building violated the setback, height, and size restrictions and that no permits were pulled for the project. Therefore, Complainant established Respondent disregarded building codes of Pima County in violation of A.R.S. § 32-1154(A)(2).

Complainant’s counsel requested restitution be awarded as allowed under A.R.S. § 32-1156.01. While Complainant testified he had incurred fines from the county based on the violations cited above, Complainant did not establish with any specificity his damages such that an order of restitution would be appropriate in this matter.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 221194 for a period of three days.

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, November 7, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors