ALJDEC decisions subject to certification as final

2016A-2010-ROC · Registrar of Contractors · 2016-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna M. Hicks,

COMPLAINANT,

v.

LVM Construction, LLC,

License No: 298675

RESPONDENT.

No. 2016A-2010-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 3, 2016

APPEARANCES: Complainant Donna M. Hicks appeared on her own behalf. Respondent LVM Construction, LLC, did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

LVM Construction, LLC (Respondent) is the holder of License No. 298675 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 11, 2016, Donna M. Hicks (Complainant) signed a contract with Respondent for, among other things, drywall repair in the kitchen ceiling, removal and replacement of the patio fascia, and repair of kool decking around the pool.

On or about June 10, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Russell Reed. After a jobsite inspection, Investigator Reed 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 July 15, 2016.

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

Texture of drywall on ceiling does not match as closely as possible to existing drywall.

Paint should match as closely as possible. Areas inside house and on covered patio have inconsistent paint.

Texture of kool decking on west side of pool does not match existing kool decking as closely as possible.

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

Following the issuance of the written directive, Respondent did not make any attempt to contact Complainant until July 15, 2016, the deadline for compliance with the Directive.

On or about July 18, 2016, Investigator Reed performed a compliance inspection. At that time, Investigator Reed noted that Respondent had not repaired any of the poor workmanship found during the jobsite inspection.

The Registrar issued a Citation against Respondent, charging a possible violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 3, 2016. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on October 3, 2016.

Investigator Reed testified that areas of the drywall repair were shiny when the existing areas were not shiny, there was no paint around the ceiling fan, and there was no paint in a corner of the living room. Investigator Reed also noted that the west side of the kool decking was not smooth at all and was more similar to an aircraft carrier deck.

Complainant testified that it is not possible to walk on the kool decking.

Complainant’s daughter testified that before Complainant filed the complaint, she showed Respondent everything that was wrong to try to resolve the issue. She also indicated that she and Complainant tried to text, call, and email Respondent and received no responses.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 24, 2016. Such prior License record reflects that Respondent’s License 298675 was first issued on May 6, 2015, and is current. Such prior License record also reflects that there was 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 Respondent’s drywall repair, painting, and kool decking repair was flawed. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not make any attempts to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

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. 298675 for a period of 3 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, October 24, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors