ALJDEC decisions subject to certification as final

2016A-4392-CHC-ROC · Registrar of Contractors · 2017-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amanda Libuse Lusk,

COMPLAINANT,

v.

License No: 295636 of

Handyman Randy LLC dba

HMR Properties Services (LLC)

RESPONDENT.

No. 2016A-4392-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2017 and May 22, 2017

APPEARANCES: Amanda Libuse Lusk (Complainant) appeared on her own behalf. No one appeared on behalf of Respondent Handyman Randy LLC dba HMR Properties Services (LLC).

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 2633 West Roween Avenue, Phoenix, Arizona 85029.

Respondent holds Arizona Contractor’s License 295636. That license was issued on January 12, 2015 and has been suspended based on nonrenewal since February 1, 2017.

On November 2, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on her roof, including but not limited to, using the wrong color shingles, utilizing excess cement on the roof flashing and failing to complete the lapped shingles on the side of the patio.

The Registrar assigned investigator Steve Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on December 6, 2016, and notified Complainant and Respondent of the time and place of the inspection. Only Complainant was present at that inspection. Klein indicated that at the time of an inspection, he substantiated Complainant’s allegations regarding the shingles, excessive cement on flashing and incomplete shingle work on the side of the patio.

On December 20, 2016, Klein sent Respondent a Directive from the Registrar. The Directive stated in pertinent part 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 January 3, 2017.

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

Complaint Item 1: Shingles used were the wrong color, he used brown.

1. Verified shingles are a different color in several areas. They should match as close as possible

Complaint Item 3: Did not replace flashings as agreed.

2. Flashing replacement is not specified in the contract, however the sealing around the flashings are excusive and should be corrected

Complaint Item 5: Did not repair lapped shingles on side of patio.

3. Verified work is incomplete.

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

After the time period for compliance with the Directive, Complainant informed Klein that Respondent had not complied with the Directive. Klein therefore forwarded the matter to the Registrar’s legal department for review.

On January 5, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

Hearing was convened at the Office of Administrative Hearings on March 13, 2016.

Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. Nevertheless, the Administrative Law Judge telephoned Respondent and left him a voicemail with the number to call into the hearing room.

After the completion of all the testimony, Randy Cornelson called into the hearing room at 2:15 p.m. stating he had no notice of the hearing and could not attend for personal reasons. Cornelson also provided a new address for Respondent: 4410 West Union Hills Drive, Suite 7-253, Glendale, Arizona 85308.

Out of an abundance of caution and to ensure that the process gave all parties who wished to appear at hearing an opportunity to be heard, the Administrative Law Judge reset the hearing and sent Respondent notice at the newly provided address. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. Complainant indicated she did not wish to provide any additional evidence and let the March 13, 2017 hearing record stand.

Complainant testified consistently with the facts detailed above as did Klein.

Francisco Jose Luttman testified that he lives with Complainant and interacted with Respondent regarding the roof repair. He noted that Respondent performed the roof work at issue. Luttman indicated that when Respondent completed its work, he walked the job with Randy Cornelson who ensured him that the issues Luttman identified would be corrected. On the basis of those representations by Respondent, Complainant paid Respondent.

Luttman said that he and Complainant had filed another complaint against Respondent for leaking chimney flashing and that that complaint had been resolved.

In his answer to the Citation filed on Respondent’s behalf on January 19, Randy Cornelson stated in pertinent part:

This is my response for the issue against me from [M]s. Lusk.

Unfortunately this is an attempt for Ms[.]Lusk to capitalize on my unfortunate personal situation.

I was paid when repairs were met to her satisfaction, and I feel that this is an attempt to further extort money from by using the ROC against me?

I will not refund any money or pay for repairs.

Please set this up as a meeting with the ROC.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

Respondent’s suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable as was the Order Granting Continuance that was mailed to the address Randy Cornelson provided on March 13, 2017 and Respondent is deemed to have received notice of the hearing.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Undisputed credible evidence established that Respondent installed the wrong color shingles, used excess cement on flashing and failed to complete lapped shingle work on the side of the patio. Thus, Complainant established Respondent’s work on her roof was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted because the record is devoid of any evidence that Respondent made an attempt to comply with the Directive or to contact the Registrar before the Citation was issued.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. License No: 295636.

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(E).

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, May 24, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors