ALJDEC decisions subject to certification as final

2017A-4872-CHC-ROC · Registrar of Contractors · 2018-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christina M Reeves,

COMPLAINANT,

v.

ENR Homes LLC ,

License No: 303750

RESPONDENT.

No. 2017A-4872-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 13, 2018, 8:30 A.M.

APPEARANCES: Complainant appeared on behalf of herself; Ernest Lucke, owner and manager, and Bryan Sweeney, owner and qualifying party, appeared on behalf of Respondent; Steve Nelsen appeared on behalf of Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. ENR Homes LLC (Respondent), is the holder of License Number 303750 issued by the Registrar of Contractors (Registrar).

2. On or about September 22, 2017, Christine M. Reeves (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work on the part of Respondent in connection with the building of a home for Complainant in Queen Creek, Arizona.

3. After the Registrar’s inspection of the job site on October 13, 2017, the Registrar issued a Directive dated October 16, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by November 10, 2017, as follows:

Toilets unevenly set (ensure proper installation).

Master bath cap hole too large (Ensure correct vent and cover are installed).

Damage to bath #2 tub.

Cracks in concrete at doors and patio.

Electrical bare wire hanging out of wall not connected or capped.

Electrical wires pushed back into the wall caps. (Mark pre-wire and ensure the circuit next to the window is terminated correctly).

Flood lights not working correctly blows bulbs. (The Respondent agreed to have a licensed electrician inspect the work- if it is determined to be a manufacturer issue, the Respondent should provide warranty information to the homeowner.)

Cracks in drywall multiple places garage, patios. (Complete ongoing repairs).

Bench seat poor drywall, putty texture.

Poor texture on walls in numerous places. (Complete ongoing repairs).

Expansion joint cut improperly, left open. (Complete repairs).

A/C unit cover never attached to home (and sealed properly).

Doors have gaps, don’t seal. (Ensure seals are in place and installed correctly).

Hinge pins missing, nails used for pins.

Open eaves allows wildlife in roof space.

4. When the Registrar was advised that Respondent had not corrected all Directive items, the Registrar then issued a Citation to Respondent on November 29, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 13, 2018, at 8:30 A.M. At the hearing, Complainant appeared and testified on her own behalf; Bryan Reeves testified on behalf of Complainant; Ernest Lucke, owner and manager, and Bryan Sweeney, owner and qualifying party, appeared and testified on behalf of Respondent; Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

6. The Investigator 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 inspections. He testified that he performed another inspection of the job site on November 28, 2017, and that he observed that Directive item numbers 3, 5, 8, 9, 10, 12, 13, 14, and 15 had been corrected by Respondent; therefore Directive item numbers 1, 2, 4, 6, 7, and 11 were not corrected according to the Investigator.

7. As it relates to the Directive, Complainant testified that since the last inspection, Directive item numbers 1, 2, and 7 (although flood lights now just stay on) have been corrected by Respondent and that item numbers 4, 6, 11, still remain.

8. Ernest Lucke and Bryan Sweeney testified on behalf of Respondent as to their efforts to correct the Directive items and their continued willingness to address the remaining items. With respect to Directive item number 4 (concrete cracks), they indicated they were going to jack hammer the concrete but have decided to offer Complainant compensation instead. With respect to Directive item number 6 (light switch wires), they indicated that they have ordered new bedroom switches. With respect to Directive item number 11 (joint left open), they indicated they plan to come out and sterilize the area with the framers closing it that day followed by painting.

9. After the hearing, on February 22, 2018, Respondent submitted a document indicating “All work has been completed and signed off,” which was signed by Complainant. However, the document indicated that the remaining items to be completed were Directive item numbers 4 and 6, and the painting of a control joint. With respect to item number 4, the document reflects that the parties have agreed that Respondent is to pay Complainant the amount of $500.00 in lieu of repair of the concrete. With respect to item number 6, it reflects that Respondent will have an electrician replace the fan switches in two bedrooms. The document further reflects that when these items are complete, the Complaint will be satisfied.

10. The Tribunal has heard nothing further as to whether these items have been completed nor has there been a request of Complainant to withdraw or dismiss this Complaint.

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 Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant 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. A.R.S. § 32-1154(A) in pertinent part includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

3. Violation of any rule adopted by the registrar.

...

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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Respondent did not dispute the existence of any of the remaining items listed in the Directive. Therefore, Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for failing perform all work in a professional and workmanlike manner.

7. Respondent did correct many of the items listed in the Directive by the deadline of November 10, 2017, and has continued to work towards correcting the others. However, Respondent did not provide a satisfactory explanation as to the reason all Directive items have yet to be corrected almost four months since the Directive deadline. Accordingly, Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action.

8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, ENR Homes, LLC’s, License Number 303750 is suspended until and unless the Registrar receives and accepts written verification that ENR Homes, LLC, has corrected Complaint item numbers 4 (or has reached a financial arrangement with Complainant with respect to this item) and 6 listed in the Registrar’s Directive, dated October 31, 2017.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected the remaining items, the Registrar may close the Complaint in Case No. 2017A-4872-CHC-ROC.

. 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, March 5, 2018.

/s/ Roger A. Geddes_____

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors