ALJDEC decisions subject to certification as final
2016A-4858-CHC-ROC · Registrar of Contractors · 2017-06-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Joe and Susan Healy,
COMPLAINANTS,
v.
David Henry Perrin dba,
Dave's Custom Millwork,
License No: 173515
RESPONDENT.
No. 2016A-4858-CHC-REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 18, 2017 and June 8, 2017
APPEARANCES: Complainants Joe and Susan Healy appeared on behalf of themselves. Fidelis Garcia, Esq. appeared on behalf of Respondent David Henry Perrin dba, Dave's Custom Millwork.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On February 23, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on April 13, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.
Respondent David Henry Perrin dba, Dave’s Custom Millwork, (hereinafter “Perrin”), holds license 173515 issued by the Registrar. Perrin’s qualifying party is David Henry Perrin.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Perrin may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Perrin’s license.
In July of 2015, Complainants Joe and Susan Healy, (hereinafter “Complainants” or “Healys”), entered into a new home construction contract with Perrin.
In August of 2015, Perrin began work under the contract.
Complainants’ general contractor was Lance Norrick.
On December 5, 2016, the Registrar received a Complaint from the Healys alleging that Perrin performed poor work in the construction of their home.
On January 10, 2017, Registrar Investigator Matt Gunstra, (hereinafter “Investigator Gunstra”), conducted a job-site inspection in response to the Complaint.
On January 13, 2017, Investigator Gunstra issued a Directive to Perrin. The January 13, 2017 Directive provides, in relevant 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). You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 2: Kitchen- cabinets made of veneer which was not called out in the bid. Stain color does not match throughout the kitchen.
-Allegation regarding use of veneer is unsubstantiated and requires no action. However, there are areas of stain that do not match the surrounding close enough and shall be repaired by appropriate means.
Complaint Item 5: Kitchen Pass Thru- One pane of glass is cracked and has not been replaced.
Complaint Item 9: Doors and Hinges- sub-standard hinges and glides utilized by DCM. Drawers do not smoothly operate and are not “tight”. Not the quality given the price point in the bid/contract.
-It has been determined that the type of hardware installed is per contract. However, some drawers need adjustment to operate correctly. Respondent shall adjust drawers and doors one time at substantial completion and then as needed for the first year so they operate as intended by the manufacturer.
Through the Directive, the Registrar ordered Perrin to remedy the alleged violations by appropriate means no later than January 27, 2017.
Perrin performed corrective work at the Perrin’s home on January 26,
2017. Lance Norrick was onsite when Perrin performed the work.
14. On January 26, 2017, at 12:36 p.m., Joe Healy sent an electronic mail message, (hereinafter, “e-mail”), to David Henry Perrin. See Exhibit 4. The e-mail provides, in relevant part, as follows:
Dave,
You will have access to our home at 8:30 am tomorrow morning, 1/27.
1. Finish completing all stating to comply with ROC standards. The directive states, “Respondent should take action he feels is appropriate to meet ROC standards. This does not limit the Respondent in addressing any items he wants that go beyond the Directive but does not require it.” Therefore we are requesting you to:
2. Attach all pulls and knobs available to cabinetry (hardware order was incomplete so at this time not installation can be done on 2 doors on kitchen pass through side and bath 2 and casita bath 3. Modify two end posts in AZ to match the door style that we have discussed several times. We are requesting that the ROC deadline be extended until 8am on Monday, 1/30.
15. On January 26, 2017, at 8:53 p.m., David Henry Perrin confirmed with Mr. Healy that he would come to his home the following morning. David Henry Perrin sent an e-mail message to Joe Healy on January 26, 2017 stating that he just texted Lance, and that he would meet him at 8:30 a.m. See Exhibit 4.
16. On January 26, 2017, at 9:20 p.m., Joe Healy sent David Henry Perrin an e-mail message. See Exhibit 4. The email provides, in relevant part, as follows:
You should have coordinated thru Susan or me.
This late of a response the day before is problematic.
No meeting tomorrow-no access.
17. On January 26, 2017, at 9:23 p.m., Joe Healy sent an email to David
Henry Perrin. See Exhibit 4. The email provides, in relevant part, as follows:
I don’t appreciate being pulled out of a work dinner while in Seattle to coordinate/communicate this at such a late hour.
Failure to plain in advance is not my issue.
18. On January 30, 2017, Mr. Healy informed Investigator Gunstra that Perrin
failed to correct the items listed in the Directive.
19. On February 1, 2017, Investigator Gunstra completed a compliance inspection and determined that Perrin had repaired complaint item number 5. However, Investigator Gunstra determined that items 2 and 9 had not been repaired to standard.
20. At hearing, David Henry Perrin testified that Complainant denied
access to his home to complete the repairs listed in the Directive.
21. Mr. Healy did not dispute that he told Perrin that he would not have access to his home. However, Mr. Healy testified that he expected Perrin to contact him to complete the repairs.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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 preponderance of the evidence does not show that Perrin violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Complainants did not allow Perrin access to correct the work. Mr. Healy told David Henry Perrin that he would have no access to his home. Mr. Healy did not inform Perrin that he was allowed to come to his home to complete repairs.
The preponderance of the evidence established that Complainant denied Respondent reasonable access to his residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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 is forty days after the date of that certification.
Done this day, June 28, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors