ALJDEC decisions subject to certification as final
2017A-128-CHC-ROC · Registrar of Contractors · 2017-05-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Willie Benita Myers,
COMPLAINANT,
v.
Farco Construction LLC ,
License No: 236434
RESPONDENT.
No. 2017A-128-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 18, 2017
APPEARANCES: Zunicka Brown and Christopher Brown on behalf of Complainant; Vaughn Farthing, President of Respondent, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Farco Construction, LLC, (Respondent), is the holder of License Number 236434 issued by the Registrar of Contractors (Registrar).
2. On or about December 14, 2015, Complainant and Respondent entered into a written contract for the construction of an improvement at the residential property located at 8620 S. 16th Place, Phoenix, Arizona (contract). Total cost of the construction was specified to be $44,340.53 and the contract provided that it be paid by Complainant by way of three equal progress payments of $13,302.05 and a final payment of $4,434.38 upon completion.
3. Complainant filed a Licensed Complaint Form against Respondent on January 6, 2017, alleging various workmanship issues. After an inspection performed by the Registrar on January 30, 2017, the Registrar issued a Directive, dated February 7, 2017, for the failure to meet minimum workmanship standards (A.A.C. R4-9-108).
4. Specifically, the Registrar cited the following violations relating to incomplete work:
Complaint Item 1: Doorframe to laundry room not purchased, incomplete
Complaint Item 2: Door frame from garage entrance not purchased, incomplete
Complaint Item 3: Door to laundry room not purchased, incomplete
Complaint Item 4: Door from garage entrance not purchased, incomplete
Complaint Item 6: Door knobs missing from all interior/exterior doors, not purchased
Complaint Item 7: (2) French doors not purchased, incomplete
Complaint Item 8: Hot water heater not purchased
Complaint Item 9: AC unit not purchased
Complaint Item 10: Tiles in shower incomplete in master bathroom
Complaint Item 11: No drain purchased/installed for washer in laundry room
Complaint Item 12: No vent purchased/installed for dryer in laundry room
Complaint Item 15: Cooler unit removed from brick wall and hole not replaced/filled
Complaint Item 17: Faucet handles not purchased for stand-alone faucet bathroom #2
Complaint Item 18: Recessed lighting in kitchen incomplete not purchased
Complaint Item 19: Dining room light fixture or ceiling fan not purchased
Complaint Item 20: Family room light fixture or ceiling fan not purchased
Complaint Item 21: Light fixture or ceiling fan in master bedroom not purchased
Complaint Item 22: Doors that are hung need paint
Complaint Item 23: All base boards need paint
Complaint Item 24: Shelves not purchased for laundry room
Complaint Item 27: Closet poles not purchased for bedrooms
Complaint Item 28: Remove shelving from garage
Complaint Item 29: Paint garage interior walls
The Registrar also cited the following violations relating to deficient work:
Complaint Item 14: Baseboards in master bath not level/straight/flush
Complaint Item 16: Stand-alone faucet not secure in bathroom #2
Complaint Item 25: Bow in kitchen wall not corrected
Complaint Item 26: Floor tile as marked unlevel and misaligned
5. The Registrar then on February 22, 2017, issued a Citation to Respondent for alleged violations of A.R.S. § 32-1154(A)(1) (abandonment of a contract), A.R.S. § 32-1154(A)(2) (departure from or disregard of plans and specifications), A.R.S. § 32-1154(A)(3) (failure to meet minimum construction standards), and A.R.S. § 32-1154(A)(22) (failure to take corrective action). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
6. The Registrar issued a Notice of Hearing setting a hearing for April 18, 2017, at 8:30 A.M. A hearing was held on April 18, 2017, at 8:30 A.M. Complainant presented the testimony of Zunicka Brown and Christopher Brown. Respondent presented the testimony of Vaughn Farthing. Matt Gunstra appeared on behalf of the Registrar.
7. Matt Gunstra on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection.
8. Zunicka Brown and Christopher Brown on behalf of Complainant both testified that none of the items listed in the Registrar’s Directive had been remedied by Respondent and that no corrective action had been taken.
9. Vaughn Farthing on behalf of Respondent testified that “nothing was completed” and that he agreed with all of the listed incomplete and deficient items in the Registrar’s Directive.
10. Mr. Farthing further testified that the items listed in the Directive could not be completed or remedied until Respondent paid the last payment due under the contact in the amount of $4,434.38. He further testified that there was an addendum to the contract whereby Complainant agreed to purchase various items in the amount of almost $4,000.00 that were to be installed on the project under the contract so that Respondent could complete the project.
11. Ms. Brown testified that there was no such addendum to the contract but that there had been conversations with Respondent about purchasing materials that were to be installed under the contract but that Complainant elected not to do so because she had no guaranty the materials would be installed on the project or that the work would go forward.
12. Respondent also claims an additional payment of $1,200.00 due from Complainant for installation of windows by Respondent that was not part of the original contract. Ms. Brown testified that Complainant did in fact separately pay $1,700.00 to purchase the windows. However, Ms. Brown testified that there had been no discussion as to any labor cost for the installation of the windows. Mr. Farthing did not dispute that there was no such conversations.
CONCLUSIONS OF LAW
1. 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.
2. 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 preponderance of the evidence. See ARIZ. ADMIN. CODE Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainants 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).
4. ARIZ. REV. STAT. section 32-1154(A) provides that:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
3. Violation of any rule adopted by the registrar.
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22. Failure 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....
5. ARIZ. ADMIN. CODE Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”
6. It is undisputed that none of the items listed in the Registrar’s Directive, dated February 7, 2017, have been completed or remedied by Respondent or that any required corrective action has been taken by Respondent.
7. The fact that Complainant did not make the final payment of $4,434.38 to Respondent does not constitute a legal excuse for Respondent to abandon or not complete the project. The contract specifically states such payment shall be due “upon completion.” It is undisputed that the job has not been completed.
8. There was further no credible evidence that there was an addendum to the contract relating to the completion of the project. Respondent did submit a two-page document with the handwritten notation “Material List Addendum to Contract” that listed materials that were purportedly to be purchased to complete the project. However, this document was unsigned by either party and does not specify who was to purchase the items listed. Further, Complainant’s copy of the same document did not include any handwritten notation that it was intended to be an addendum to the document.
9. The matter concerning the alleged unpaid amount for the installation of the windows is not the subject of this proceeding.
10. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. §§ 32-1154(A)(1), 32-1154(A)(2), 32-1154(A)(3), and 32-1154(A)(22)
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Farco Construction, LLC’s, License Number 236434 is suspended until the Registrar receives and accepts written verification that Farco Construction, LLC, has remedied the items listed in the Registrar’s Directive, dated February 7, 2017.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, May 8, 2017.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors