ALJDEC decisions subject to certification as final

2017A-3852-CHC-ROC · Registrar of Contractors · 2017-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AZ Hydro Pro,

COMPLAINANT,

v.

Southcreek Home Solutions LLC,

License No: 300024

RESPONDENT.

No. 2017A-3852-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 11, 2017

APPEARANCES: Raymond Odom, Jr., Member and Qualifying Party, appeared on behalf of Complainant Arizona Hydro Pro. Pamela Sue Bauer, Member and Qualifying Party, appeared on behalf of Respondent Southcreek Home Solutions, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Southcreek Home Solutions LLC (Respondent) is the holder of License No. 300024 issued by the Arizona Registrar of Contractors (Registrar).

At some point, AZ Hydro Pro (Complainant) entered into a verbal contract with Respondent for work on a project.

On or about July 28, 2017, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. In the jobsite inspection notes, Investigator Klein noted that Complainant had hired someone else to complete the work on the project so the home could be rented and all work was completed prior to the jobsite inspection. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 9-26-17.

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

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

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

Following the issuance of the written directive, no additional work was required because it had already been completed and no settlement was reached between the parties. After the deadline in the directive expired, Investigator Klein was notified the matter had not been resolved.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Investigator Klein testified that at the time of the jobsite inspection, the workmanship issues identified by Complainant had been completed by someone else hired by Complainant.

Mr. Odom testified that Ms. Bauer was not good at paperwork and failed to provide proper documentation of change orders to account for the inflated payment requests Respondent was making. Mr. Odom pointed out various workmanship concerns that had been addressed by the subsequent contractors.

Ms. Bauer stated that the project was going well until the end of April when she demanded a payment of $9,000.00. Ms. Bauer asserted that the spreadsheets were up to date at that time and that Complainant knew of her costs. Ms. Bauer stated that because Respondent had not been paid, it had not completed the project. Ms. Bauer testified that finishing items were not completed on the project because Respondent was not done with the project.

Administrative notice is taken of Respondent’s prior License record on December 27, 2017. Such prior License record reflects that Respondent’s License No. 300024 was first issued on July 8, 2015, and is current. Such prior License record also reflects that there were no other open complaints or resolved/settled/withdrawn complaints against Respondent’s license.

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 violations 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).

A.A.C. R4-9-108 provides that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar,” which would include A.A.C. R4-9-108.

However, A.R.S. § 32-1155(C) provides that the Registrar “shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if . . . [t]he contractor’s work has been subject to neglect, modification or abnormal use.”

The uncontroverted evidence established that at the time of the jobsite inspection, any alleged workmanship issued had already been addressed by a subsequent contractor hired by Complainant. Thus, the Registrar should not have issued a citation for an alleged violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Respondent was also cited for an alleged violation of A.R.S. § 32-1154(A)(1). Complainant and Respondent both represented that Respondent did not complete the work on the project. Respondent, however, asserted that the failure to complete the project was due to Complainant’s failure to render payment when due. Because the parties did not have a written contract, it is not possible to determine the terms of the agreement between the parties as to when payment was due or Respondent’s options under the agreement in the event Complainant failed to make required payments. As such, it is not appropriate to impose discipline against Respondent based on a violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant AZ Hydro Pro’s complaint in Case No. 2017-3852 against Respondent Southcreek Home Solution LLC’s License No. 300024.

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, December 28, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors