ALJDEC decisions subject to certification as final

2017A-3114-CHC-ROC · Registrar of Contractors · 2017-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Abraham John Purdy,

COMPLAINANT,

Creta Universal Construction LLC,

License No: 297219

RESPONDENT.

No. 2017A-3114-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 31, 2017

APPEARANCES: Complainant Abraham John Purdy appeared on behalf of himself. John Galea appeared on behalf of Respondent Creta Universal Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Vasile Creta began building a home in 2015 located at 2921 E. Monroe Street, Phoenix, AZ 85034. Vasile Creta completed the construction of the home in 2016.

2. On or about December 18, 2016, Vasile Creta sold the home to Complainant Abraham John Purdy (“Mr. Purdy”).

3. After purchasing the home, Mr. Purdy noticed several cracks in the foundation of the garage.

4. On or about June 19, 2017, the Registrar received a complaint from Mr. Purdy alleging poor workmanship on the part of Creta Universal Construction, LLC (“Creta”).

5. Creta is not licensed to perform work that requires a B - General Contractor’s license. Creta is licensed to perform finish carpentry.

6 On July 12, 2017, Investigator Jack Grimm, (hereinafter “Investigator Grimm”), conducted a jobsite inspection.

7. On July 25, 2017, Investigator Grimm issued a Directive to Creta Universal. The July 25, 2017 Directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 8/11/2017.

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

1. Large crack in foundation inside garage.

Correct heaving (lifting) concrete at curb in garage by appropriate means. Correct any damage caused by movement to west side garage wall and door.

* * * *

You may not perform or hire other contractors to perform work that is outside the scope of your license If any workmanship violations listed above are designated as outside the scope of your license then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

8. Creta did not correct the items listed in the Directive by the due date. During the time period for compliance under the Directive, Mr. Purdy informed Mr. Creta of other licensed contractors he found to repair the work. Creta informed Mr. Purdy that it would not pay for another contractor to fix the work.

9. On August 22, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3) and (A)(22).

10. Creta filed a timely answer to the Citation.

11. Creta’s response filed with the Registrar on or about September 5, 2017 provides, in relevant part, as follows:

I, Vasile Creta & Timeea, as previous owners of above property, we state the fallowing;

We did not build the house under Creta Universal Construction, LLC. We built the house by owner for our personal use and for well determined reasons we decided to sell the house As Is..and we offered the buyer a 2 year warranty.

12. The matter was referred to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

13. On October 31, 2017, an evidentiary hearing was held.

14. Mr. Purdy testified on his own behalf and submitted exhibits A through E. Mr. Galea testified at hearing and submitted exhibits 1 through 10. Investigator Grimm also provided testimony.

15. At hearing, Ms. Purdy testified that he was not sure whether he purchased the home from Vasile Creta or Creta Universal. Mr. Purdy provided documents showing that he purchased the home from Vasile Creta. Mr. Purdy testified that a few of the employees from Creta Universal informed him that they performed work on the construction of the home. Mr. Purdy contended that whether he purchased the home from Mr. Creta or from Creta Universal, Vasile Creta is licensed and should be liable for its poor work.

16. I find Mr. Purdy’s testimony to be credible.

17. Mr. Galea testified that he is an employee of Creta Universal. Mr. Galea

testified that Mr. Creta build the home for himself and later decided to sell the home. Creta Universal contended that it should not be responsible for a home that was built by its member, Vasile Creta, for Vasile Creta and later sold to Mr. Purdy.

18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 11, 2017, there is one open complaint against Creta Universal’s license. Such prior License Record shows that there were two complaints that resulted in discipline against Creta Universal. Such prior License record also shows that there were two complaints that were closed against Creta Universal that were resolved or settled by Creta Universal or withdrawn by the complainant after issuance of a corrective work order or formal citation.

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 violation 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).

Under Arizona Administrative Code Rule 4-9-108(B), a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

Under Ariz. Rev. Stat. section 32-1101(A)(3), “Contractor” is synonymous with the term “builder” and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others or directly or indirectly supervises others to”

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(b) Connect such structure or improvements to utility service lines and metering devices and the sewer line.

Under Ariz. Rev. Stat. section 32-1121(A)(5) provides:

This chapter shall not be construed to apply to:

Owners of property who improve such property or who build or improve structures or appurtenances on such property and who do the work themselves, with their own employees or with duly licensed contractors, if the structure, group of structures or appurtenances, including the improvements thereto, are intended for occupancy solely by the owner and are not intended for occupancy by members of the public as the owner's employees or business visitors and the structures or appurtenances are not intended for sale or for rent. In all actions brought under this chapter, except an action against an owner-occupant as defined in section 33-1002, proof of the sale or rent or the offering for sale or rent of any such structure by the owner-builder within one year after completion or issuance of a certificate of occupancy is prima facie evidence that such project was undertaken for the purpose of sale or rent. For the purposes of this paragraph, "sale" or "rent" includes any arrangement by which the owner receives compensation in money, provisions, chattels or labor from the occupancy or the transfer of the property or the structures on the property.

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 listed in 32-1154(A)(3) and 32-1154(A)(22).

The preponderance of the evidence shows that the issues found by Investigator Grimm constituted workmanship issues with construction of Mr. Purdy’s home. Therefore, the Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent attempted to comply with the directive, but that all of the work was not completed and/or was not completed properly. Therefore, Complainant established that Respondent failed to comply with the Directive without valid justification in violation of A.R.S. § 32-1154(A)(22).

A contractor is synonymous with a person or builder of a home. Vasile Creta and employees of Creta, built Mr. Purdy’s home and Vasile Creta sold it within one year of its construction. Therefore, Vasile Creta and Creta built the home for the purpose of sale. Therefore, Creta has violated 32-1154(A)(3) and (A)(22). The preponderance of the evidence showed that Respondent violated A.R.S. § 32-115(A)(12), namely A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Creta Universal Development LLC, License No: 288234 and License No: 288660 for a period of three (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(E).

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 licenses, 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 is forty days after the date of that certification.

Done this day, December 11, 2017

Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors