ALJDEC decisions subject to certification as final

2016A-695-ROC · Registrar of Contractors · 2016-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stacy A Cheaney Thompson and

Alan Churchill,

COMPLAINANTS,

v.

M V P Home Builders and Remodeling Inc,

License No: 195967

RESPONDENT.

No. 2016A-695-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2016

APPEARANCES: Stacy Thompson and Alan Churchill, Complainants; Ryan Duches, Attorney for Respondent; Chad Adamski, Respondent’s representative; Steven Drake, Mark Thomas, Robert Case, witnesses; Steve Lawton and Beau Cruz, Registrar of Contractors Investigators

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

On February 29, 2016, Complainant Stacy Thompson filed a complaint with the Registrar of Contractors against Respondent regarding the construction of her new home. On April 11, 2016, Registrar of Contractors Investigator Beau Cruz conducted a job site inspection. He issued a Directive from the Registrar on April 20, 2016 directing Respondent to correct the following items:

Complaint Item 1: Gas Line to location of ovens-was not installed per plans and has been paid to Tucker Plumbing.

Install gas line for ovens per approved and stamped plans.

Complaint Item 2: Back Patio Ceiling-cracks in 3 areas, MVP told us how he it will be repaired but did not follow manuf directions.

Repair seam crack that has reappeared in drywall ceiling of patio adjacent, to Dining Room window.

Complaint Item 7: Master bath and hall bath vanity wall gap in excess of standards.

Gap in excess of 1⁄8′′ between wall and counter backsplash of “Hers” vanity located on left corner (, crack in drywall and void in caulk of backsplash below area of receptacle on northwest (N/W) wall and, gap in excess of 1⁄8′′ between wall and left corner of counter backsplash of the north (N) hall bathroom.

Complaint Item 9: Replace striker plates with larger striker place at all exterior doors.

Scratched/damaged strike plate for front entry door.

Complaint Item 13: Interior door trim for front entry door damaged when contractor replaced striker plate.

Dented latch side trim directly in line with strike plate.

Complaint Item 14: Contractor patched water heater platform in the garage, and cracks have reappeared.

Diagonal cracks noted by lower left corner of the water heater platform in the garage.

Complaint Item 15: Concrete finish of back patio not performed in a professional and workmanlike manner.

Indented lines on the surface of the concrete of back patio on south (S) side of north (N) post, chipped and cracked concrete on both side of patio post behind dining room window with exposed aggregate noted by southwest (S/W) corner, chatter marks on surface of concrete of back patio behind post in area behind Master Bedroom and, chip in surface of concrete of approximately 1′′ in diameter with exposed aggregate, to right of master bedroom door leading out to the patio.

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

On June 6, 2016, Registrar of Contractors Investigators Cruz and Steve Lawton conducted a compliance inspection. They found that the only item that was still at issue was the gas line connection referenced as Item 1. It was not corrected in accordance with the plans but it was passed by a county inspector. According to the testimony of Investigator Lawton, county inspectors have the authority to approve changes to the plans on site. Because the county passed the gas line in its inspection, the installation is deemed to have met building code requirements.

Complainants argued that the gas installation was not done according to their building plans. Complainant Churchill testified that he has not been shown a flow chart to prove to him that the gas line will be sufficient.

The parties offered evidence regarding why the gas lines weren’t installed initially. Respondent’s evidence was more convincing. It maintained that Respondent was instructed not to run the gas lines because Complainants purchased an electric stove. Nevertheless, the history is of little relevance because Respondent did not dispute being ordered to install a gas line and it was accomplished in a manner that satisfied the Registrar of Contractors Investigators.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3), (12), and (22).

A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative.

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108.

A.R.S. § 32-1154(A)(12) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. According to Investigator Cruz, this matter was settled with the Registrar of Contractors prior to the hearing.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. As of the time of this recommendation, Respondent’s license is in good standing with only one open complaint against it.

Complainants have the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119. In this case, Complainants have established that Respondent violated A.R.S. § 32-1154(A) on some minor issues that have been corrected to the satisfaction of the Registrar of Contractors Investigators. Complainants have not established that it would be appropriate to impose any discipline against Respondent’s license because the issues were minor and they were all corrected.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be dismissed.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 9, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors