FINACT2018A-05388-CHC-ROC.pdf

2018A-05388-ROC · Registrar of Contractors · 2019-06-25

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Sara Eltyne Schult, Case No. 2018-05388 COMPLAINANT, Docket No. 2018A-05388-CHC-ROC v. Dyggz Developers LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 299849, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on August 5, 2019.

FINAL NOTES

One Page 1, Line 22, replace “November 3, 2018” with “November 9, 2018.”

Dated June 24, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail June 24, 2019 to: Respondent Dyggz Developers LLC 123 W Chandler Heights Rd Unit 11504 Chandler, AZ 85248

Complainant Sara Eltyne Schult 2222 S Cottonwood Mesa, AZ 85202

AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Diane Mihalsky , Administrative Law Judge

Case No. 2018-05388 / fh

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sara Eltyne Schult, No. 2018A-05388-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Dyggz Developers, LLC, License No. ROC 299849,

RESPONDENT.

HEARING: May 9, 2019, at 1:00 p.m. APPEARANCES: Sara Eltyne Schult (“Complainant”) appeared on her own behalf; Dyggz Developers, LLC (“Respondent”) appeared through Gregory Michael Sistek, its Member/Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website,1 on June 30, 2015, the Registrar issued License No. ROC 299849 for General Dual KB-2 Dual Residential and Small Commercial Contracting to Respondent. 2. On November 3, 2018, Complainant filed a complaint with the Registrar, alleging that Respondent had performed poor work and had abandoned its contract to perform certain renovations at Complainant’s residence at 2222 S. Cottonwood, Mesa, Arizona 85202. According to the complaint, Complainant had paid Respondent $63,738.40 on a $3,000.00 contract.”2

See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). See the Registrar’s electronic record at pdf pages 25 – 39. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 3. Complainant attached a list of 62 enumerated items of allegedly poor or incomplete workmanship to the complaint. She also attached three documents prepared by Respondent: (1) Invoice #90 dated February 2, 2018, in the amount of

$3,000.00 for obtaining plans and permits for the project;3 (2) Proposal #393 dated

March 4, 2018, in the total amount of $65,381.75 for certain line items;4 and (3) Invoice

#97 dated June 15, 2018, in the amount of $65,381.75 for certain line items that

corresponded to Proposal #393.5

4. The complaint was assigned to the Registrar’s Investigator Dennis Bierma for

investigation. On January 14, 2019, Investigator Bierma performed a jobsite

inspection, which both parties attended. Investigator Bierma’s jobsite inspection notes

stated in relevant part as follows:

Upon investigation of this item for abandonment I was able to confirm that the project has not been completed at this time. I was able to determine that the project seems to be over halfway complete but it is not finished. . . .6

5. On January 15, 2019, Investigator Bierma on behalf of the Registrar issued a Directive that required Respondent to perform the following corrections on or before February 12, 2019, at 5:00 p.m.: Respondent shall complete the project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.7 6. After Complainant informed Investigator Bierma that Respondent had not performed any work, he referred the complaint to the Registrar’s Legal Department. 7. On February 21, 2019, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and 32-1154(A)(22).8

See id. at 29. See id. at 30 – 34. See id. at 35 – 39. Id. at 67. Id. at 58. 8 See id. at 5 – 11. 8. Respondent filed a timely answer to the Citation, stating that it would like to request a settlement conference. 9. The Registrar referred the matter to the Office of Administrative Hearings, an

independent state agency, for an evidentiary hearing.

10. A hearing was held on May 9, 2019. Complainant submitted three exhibits,

testified on her own behalf, and presented the testimony of her daughter, Jenna Devlin.

Respondent’s qualifying party/member, Gregory Sistek, testified on its behalf.

Investigator Bierma also testified.

ADDITIONAL HEARING EVIDENCE

11. Investigator Bierma testified consistently with his jobsite inspection notes

and directive. He did not perform a prehearing jobsite inspection because Mr. Sistek

said that Respondent had not performed any additional work on the project. He did not

recommend that the Registrar charge Respondent with abandonment because

Respondent had performed some work on the project. 12. Complainant was recently widowed and had to sell the house that her deceased husband had built and move into the house on S. Cottonwood. Because a tree had fallen on the house on S. Cottonwood, it needed extensive repair and renovation. Complainant testified that a friend recommended the first contractor she hired and, although she looked at the Registrar’s website, she later learned that the contractor only had a handyman license.9 At some point, Complainant’s first contractor was terminated. 13. Complainant testified that another friend, who was an electrician, recommended Respondent. 14. Mr. Sistek testified that Respondent took over the project after Complainant hired an unlicensed contractor to start the project and an electrician friend approached him about correcting questionable work that the unlicensed contractor had performed for Complainant. The house had structural issues because the unlicensed contractor had removed a bearing wall. Complainant did not have any plans or permits and did Because the Registrar does not license handymen, the contractor would not have appeared on the Registrar’s website. not know exactly what she wanted. Because Complainant could not live in the house, Mr. Sistek hired an architect to prepare general plans that would allow Respondent to begin construction while Complainant made up her mind about the design of the

renovations.

15. Mr. Sistek introduced Complainant to a designer, but she was unable to

come to an agreement with the designer. Mr. Sistek testified that he prepared an

estimate with an expected scope of work, but that construction became a frustrating

experience for both parties because Complainant could not make up her mind about

the details of specific scopes of work.

16. Complainant contracted directly with the cabinet fabricator and installer to

perform work in the kitchen and bathrooms.

17. During the hearing, Complainant withdrew the following complaint item

numbers:

Item # Description

1 “A/C vent system is not working properly” “Uneven tile flooring and holes in grout” “Tile backsplash needs to be installed in hallway and kitchen” “Barn door and door to master toilet need to match agreed upon selection” 12 “Glass frameless shower door/panel to be installed after leveling shower wall” “Tile backsplash needs to be installed in master bathroom” “Install hardware plumbing in master bathroom” 17 “Finish drywall and point all walls in master bathroom” “In kitchen install vent hood to code” 22 “Level floor in kitchen so refrigerator will balance and sit level” “Resolution between contractor and cabinet company so that homeowners can complete contract with cabinet company” “Provide keys for new family room patio doors or rekey” “Replace/install insulation where not completed and obtain insulation inspection” “Plumbing tighten both toilet fittings” “Tighten and set all faucets in both bathrooms so they are even” “Tighten and align tub/shower plumbing in guest bath” 33 “Install hose bibs to working order to all four sides of the house, as existed before the remodel and repair stucco damage” 34 “Hall/guest bathroom drain must be replaced as it does not fit or seal. The finish was ruined by tile installers” 35 “Ensure all plumbing works when major construction and tile work is completed in master bath” 36 “Cap remaining cleanouts making flush to walls in toilet room, master closet, and closet of front bedroom” 37 “Fix or replace kitchen sink disposal and get vegetable sink disposal working” “Install towel bars in both bathrooms.” “Caulk grout in hall/guest bath tub surround and add grout to voids in floors” “Reconnect outside irrigation lines as they were before” 44 “Return or install new laundry room door” “Install new electrical outlet plates/covers throughout house” 46 “Install recessed dryer vent kit to correct laundry vent crimp” “Paint, caulk all walls cleaned up, including outside stucco work and paint” “Paint new master patio door and family room patio doors. Doors have been primed but not painted” “Return missing personal items removed from garage without permission and not returned…” 54 “Credit for the tile (purchased by owner for other tile work not done) and used for multiple do overs for poor workmanship” 55 “Credit for skylight as promised or return ($350)” “Credit for framed pocket door as promised if taken ($150)” 57 “Credit for locks that I purchased for security— Keys were not provided after asking multiple times for them”

The parties’ evidence on the remaining items is summarized below.

18. Complainant’s daughter, Mrs. Devlin, went through the remaining

enumerated items on the complaint, pointed out where the items were on Invoice #97,

and testified about the current status of each item. Complainant submitted a

spreadsheet setting forth the complaint items,10 the Registrar’s Citation and

Respondent’s invoices,11 and photographs of the current state of the work.12

The Drywall around the Kitchen Window (Complaint Item #2)

19. Invoice #97 at page 5 required Respondent to install new windows

throughout the home.13 20. Although Respondent had installed a new window in the kitchen, Mrs. Devlin testified that a chunk of drywall was missing from the edge of the installation. 21. Mr. Sistek acknowledged that Respondent contracted to repair drywall. He testified that, for expediency, Respondent did not repair the drywall around the kitchen window because, at the time, the kitchen cabinets had not yet been installed. After the cabinets were installed, his communications with Complainant became difficult because she could not make up her mind and, when Respondent prepared change orders for items she had requested, she became upset about the cost. Mr. Sistek acknowledged that the drywall around the kitchen window needed to be repaired. Missing Baseboard (Complaint Item #3) 22. Invoice #97 at page 3 required Respondent to install new baseboards throughout the home, at a cost of $2.50/linear foot, for an estimated amount of $2,000.00.14

See Complainant’s Exhibit 1. The Administrative Law Judge made notes on Exhibit 1 to help her keep track of the status of the various complaint items. See Complainant’s Exhibit 2. See Complainant’s Exhibit 3. 13 See the Registrar’s electronic file at pdf page 39. 23. Mrs. Devlin estimated that there should be 500 linear feet of baseboard in the house, which meant that the $2,000.00 estimated amount came out to $4.00/linear foot.

24. Ms. Devlin testified that, although Respondent had installed baseboard in

some of the home, baseboard was missing from the master bathroom, kitchen, and

master closet, for a total of about 50 linear feet.

25. Mr. Sistek testified that he did not have a completed design for the master

closet or master bath, which prevented Respondent from installing baseboard in those

rooms. There also was not a completed fireplace in the family room, which prevented

Respondent from installing baseboards in the family room.

Doors Needing Strike Plates and Weather Stripping (Complaint Item #5)

26. Mrs. Devlin pointed out that Respondent contracted to install a new patio

exterior door for $2,450.00 at page 5 of Invoice 97.15

27. Mrs. Devlin testified that, although Respondent had installed the exterior

door, it lacked strike plates and weather stripping.

28. Mr. Sistek testified that, when the doors were installed, they had weather

stripping. He does not know who took the weather stripping off. It was a minor issue. Five Missing Interior Doors (Complaint Item #7) 29. Invoice #97 at page 4 provided that Respondent would provide and install new doors to the master bathroom and master bathroom toilet at a cost of $750.00 and at page 5 provided that Respondent would provide and install a new master bedroom exit door at a cost of $875.00.16 30. Mrs. Devlin testified that, in addition, Respondent had agreed to provide and install new interior doors for the master bedroom, the master bedroom closet and the laundry room, with a barn door between the master bedroom and master bathroom, for a total of five doors. Mrs. Devlin testified that Respondent had not provided or installed these five interior doors.

See id. at 37. See id. at 39. 16 See id. at 38, 39. 31. Mr. Sistek testified that Respondent was waiting for Complainant to make up her mind on the style of the doors that the parties’ contract required. Two Holes in Master Bedroom Floor (Complaint Item #9)

32. Mrs. Devlin testified that Respondent had filled the holes because

Complainant feared that bugs would enter the master bedroom through the holes.

Although Respondent had covered filled holes with tile, but Complainant was afraid that

the tile would crack.

33. Mr. Sistek testified that Respondent filled the holes with concrete before the

tile was set.

Shower Wall in Master Bath (Complaint Item #10)

34. The complaint stated that the shower wall in the master bath needed to be

leveled for installation of a glass and panel door.

35. Invoice #97 at page 4 includes an $850.00 allowance for new shower glass

at master bath.

36. Mrs. Devlin testified that the whole shower needed to be reframed because

the walls were not plumb in that the base for the shower door was 1” further out that the

bottom. Although Invoice #97 showed a specific credit for the shower door, Respondent had not provided a door. 37. Mr. Sistek testified that the master shower was already framed when Respondent started the project. Complainant was concerned about having the door swing outward, which would allow her to hold a chair while she was entering the shower. A friend of Complainant’s added a tile detail to allow the door to swing in and out. 38. Mr. Sistek testified that the wall is plumb and level toward the bottom. It would be possible to reset the door to straighten it. Cap Plumbing in Master Bathroom (Complaint Item #15) 39. Invoice #97 at page 2 includes a charge for correcting the piping at the master bath and installing overhead piping. 40. Mrs. Devlin testified that the plumbing had been installed, but that the pipes were sticking out of the wall and needed caps to cover them. 41. Mr. Sistek testified that plumbing is usually capped at the end of the project. Caps cost about $3.00. Smart Keys for New Master Bedroom and Family Room Patio Doors (Complaint Item #16)

42. As noted above. Respondent’s Invoice #97 at page 2 included a charge for

a new patio door. According to Respondent’s Invoice #97, the patio door would be

“door handle keyed.” Mrs. Devlin did not call to the Administrative Law Judge’s

attention any charge for an exterior door from the master bedroom.

43. Mrs. Devlin testified that the doors to the exterior would not close when

Complainant moved into the house. Complainant asked Respondent for a key, but he

failed to provide one. Ms. Devlin testified that Complainant had to purchase more

expensive keys due to the incomplete installation of the door. Complainant requested

$150.00 for the keys.

44. Mr. Sistek acknowledged that he lost the key after he locked the doors and

that Respondent owed Complainant for rekeying the doors. Mr. Sistek testified that

Respondent did not agree to a sophisticated lock that cost $150.00.

Condensation Line that Needs to be Placed in Wall to Code (Complaint Item #18)

45. Ms. Devlin testified that, when Respondent installed the new stove top hood, he pulled the condensation line for the air conditioner out of the wall and that the condensation line now runs down the exterior wall, rather than down the inside of the wall.17 Ms. Devlin testified that Respondent made a verbal agreement to put the condensation line back inside the wall. Ms. Devlin testified that the condensation line is attached to the HVAC system that Respondent installed. 46. Invoice #97 at page 2 provides that Respondent would perform a “[s]mall modifications to new A/C ducting of dining room and master closet/bath away from sky lights. Install new registers at new locations. Install 2 new master bath exhaust fans.”18

See photographs at Complainant’s Exhibit 3 at pp. 16 – 17. 18 The Registrar’s electronic record at pdf page 36. 47. Mr. Sistek testified that he did say that he would put the condensation line back in the wall, but testified that it was not advisable for structural reasons. Mr. Sistek pointed out that the condensation line on the exterior wall worked.

Install Vent Hood Properly Once Repairs Made as Called for in Design Specs (Complaint Item #20)

48. Ms. Devlin testified that Complainant will have to pay installers, whom she

has already paid once, to reinstall the vent hood after Respondent moves the

condensation line from the exterior wall to inside the wall.

49. Ms. Devlin testified that Complainant is also concerned how Respondent

installed the vent hood, because it is just a hole in the cabinet that is not connected to

anything. Ms. Devlin testified that Respondent verbally agreed to finish installation of

the vent hood.

50. Mr. Sistek testified that the cabinet company that Complainant hired,

Spencer’s Cabinet Company, cut the hole in the cabinet. It was not within

Respondent’s scope of work. There was no item on Invoice #97 for installing the hood.

Stucco Splatter on Back Walls (Complaint Item #25)

51. Mrs. Devlin testified that, although the jobsite had been cleaned, stucco

spatter remained on the back wall. Ms. Devlin pointed out that, on page 4 of Invoice #97, Respondent undertook to repair exterior stucco. 52. Mr. Sistek acknowledged that his crew needed to perform additional cleanup. Cap Off Downdraft to Original Cooktop as Promised (Complaint Item #27) 53. Mrs. Devlin testified that the cooktop that originally was in the house was vented through the floor because it was in the island, which left holes in the floor.19 Tile and cabinets were installed over the holes. Complainant wanted to make sure that the holes were capped. 54. Mr. Sistek testified that he verbally agreed to take care of the pipe that led from the outdoors into the kitchen and that he filled the pipe with slurry. There is no problem having cabinets sit on the slurry. Install Kitchen Lights and Center them over Peninsula (Complainant Item #28) 55. Mrs. Devlin testified that the drywall around the lights need to be patched. Mrs. Devlin pointed to Invoice #97, page 2, which showed a $2,000.00 lighting

allowance “TBD,” and page 4, which concerned drywall repairs at the kitchen area for

installation of electrical.

56. Mr. Sistek agreed that Respondent was responsible for drywall repairs

around the kitchen lights over the kitchen peninsula.

Finish Electrical in Kitchen and Rest of House (Complainant Item #29)

57. Mrs. Devlin testified that there were no plates and some lights were missing

in the master bedroom and under the sink. The garbage disposal was not plugged in

and the wine refrigerator had no electricity.

58. Invoice #97 at page 1 sets forth a $1,850.00 charge for electrical, which

includes the following scope of work:

Install electrical GFCI outlets at master bath, master bedroom, open walls, kitchen GFCI outlets, oven circuit relocation, stove top, frig., dishwasher and disposal.20 Mrs. Devlin did not call the Administrative Law Judge’s attention to any other charges for electrical work. 59. Mr. Sistek testified that the electrical contractor who had referred Complainant to Respondent was responsible for most of the electrical scope of work in the house. His friend said recently that he had not heard from Complainant in months. Mr. Sistek testified that no plan was ever submitted to the city and that he understood that Complainant’s new contractor wants to relocate electrical components. Replace Hall Bath Door Because It Was Damaged During Construction (Complainant Item #40) 60. Mrs. Devlin testified that the existing hall bath door was damaged during construction.21 Both the painted door and the frame were damaged.

See Complainant’s Exhibit 3 at 14 (photograph). The Registrar’s electronic file at pdf page 35. 21 See Complainant’s Exhibit 3 at 31 (photograph). 61. Complainant testified that when her cabinet contractor put the cabinets in and the plumbing was put in, the door was not damaged. There for five doors that Respondent had hauled off that could have been used to replace the damaged door.

62. Mr. Sistek testified that he did not know whether the door was damaged by

his crew, the cabinet company’s crew, or someone else. Mr. Sistek testified that the

door could be repaired and did not have to be replaced. In any event, it was not within

Respondent’s scope of work.

Check Ceiling Repairs of Tree Damage to Make Sure Issue Resolved (Complaint Item #41)

63. Mrs. Devlin testified that the ceiling has a crack where Respondent

repaired it.22 Complainant is concerned that Respondent did not adequately repair the

damage to the ceiling caused by the tree falling.

64. Mr. Sistek testified that Respondent had repaired the crack in the ceiling

using drywall tape so that it would not crack again and then had painted the repair

twice. He did not know if the crack on Complainant’s photograph was a new crack. It

would be unusual for a crack that had been repaired to reappear.

Stained Polished Quartz on Kitchen Countertops (Complainant Item #42)

65. Mrs. Devlin testified that the quartz slabs were left out in the sun, which caused stains and etchings where the labels were on the slabs.23 66. Mrs. Devlin pointed to Invoice #97 at page 5 where Respondent charged $5,044.75 for 5 granite countertops. 67. Mr. Sistek testified that he heard for the first time at the hearing that the cause of the stain on the quartz countertop was sun exposure. Mr. Sistek testified that Complainant’s cabinet company had removed and reset the countertops when it installed the cabinets. Complainant had a contract for this work with the cabinet company, not Respondent. ////

See Complainant’s Exhibit 3 at 32 (photograph). See Complainant’s Exhibit 3 at 34. Mrs. Devlin acknowledged that the photographs did not show the stains very well. Install Smoke and CO2 Detectors per Code (See Building Permits) (Complaint Item #49) 68. Mrs. Devlin did not submit the plans or point to any line item on Respondent’s Invoice #97 in which it undertook to install smoke and CO2 Detectors.

69. Mr. Sistek testified that this item would be completed by whatever

contractor finished the job.

Replace Cracked Mirror (Complaint Item #50)

70. Complainant submitted a receipt for $273.79, which Mrs. Devlin testified

was for the mirror that Complainant bought and Respondent cracked.

71. Mr. Sistek acknowledged that Respondent’s crew had damaged the mirror.

Copies of Plans and Permits per City Requirements and Paid Receipts for All Invoices (Complaint Item #58)

72. Mrs. Devlin testified that Complainant has hired a new contractor to finish

the project but the new contractor is not willing to use the plans and permits that

Respondent previously obtained. Mrs. Devlin testified that the only inspection that

Respondent’s work passed was plumbing. Complainant requested that the Registrar

require Respondent to reimburse her for the $3,738.00 that she paid Respondent for

plans and permits.

73. Mr. Sistek testified that there was no reason to get new plans and permits because there was nothing wrong with them. The time could be extended on the permits. Termite Treatment Receipt (Complaint Item #59) 74. Mrs. Devlin pointed out that Invoice #97 at page 1 included a line item for framing. Mrs. Devlin testified that Respondent’s written answer alleged that the framing subcontractor had performed termite treatment. Mrs. Devlin testified that the framing contractor has gone out of business and that Complainant does not have any receipt for termite treatment. 75. Mrs. Devlin did not call the Administrative Law Judge’s attention to any line item on Invoice #97 that required Respondent to have termite treatment performed on Complainant’s house. 76. Mr. Sistek testified that the framing company undertook getting termite treatment before it commenced work, but that he had not been able to contact the framing company.

77. Mrs. Devlin testified that Complainant also wanted Respondent to return

the $7,335.00 that he charged Complainant for supervision on page 5 of Invoice #97.

78. Mr. Sistek testified that his intent was to have Respondent complete the

project, but the parties’ relationship had become more difficult as time went on.

79. Pursuant to A.A.C. R4-9-117, administrative notice is taken of

Respondent’s license history on the Registrar’s public website on this date. License

No. ROC 299849 was current and active, but had been disciplined twice in the past.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.24

2. Complainant bears the burden of proof to establish cause to discipline

Respondent’s contractor’s license by a preponderance of the evidence.25 Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.26 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”27 A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”28 4. Complainant did not establish that certain of her complaint items were within the scope of the work that Respondent contracted to perform, including the missing interior doors on the laundry and master bedroom (Item #7), the vent hood (Item #20), electrical, except for the GFCI to the garbage disposal (Complaint Item # 29), the

See A.R.S. § 32-1154(A). See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). 27 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). quartz countertops (Item #42), and the smoke and CO2 detectors (Item #49). These complaint items therefore do not furnish cause to suspend or revoke Respondent’s contractor’s license.

5. Complainant did not establish that some of her complaint items involved

workmanship that fell below the Registrar’s or industry standards, including the two

holes in the master bedroom floor (Item #9), the condensation line on the house’s

exterior wall (Item #18), the downdraft from the original cooktop (Item #27), and the

plans and permit that Respondent had obtained (Item #58). These complaint items

therefore do not furnish cause to suspend or revoke Respondent’s contractor’s license.

6. Complainant did not establish that Respondent was responsible for the

damage to the damage to the hall bath door (Item #40). This complaint items therefore

do not furnish cause to suspend or revoke Respondent’s contractor’s license.

7. Complainant established Respondent’s responsibility for certain

workmanship that was deficient, to wit:

7.1 The drywall repair around the kitchen window (Item #2),

7.2 The missing 50’ of baseboard in the master bathroom kitchen, and master

closet (Item #3), 7.3 The missing weather stripping on the exterior patio door (Item #5), the missing interior doors to the master bathroom, master bathroom toilet, and master bedroom exit door (Item #7), 7.4 Reframing the enclosure or adjusting the shower door in the master bathroom (Item #10), 7.5 Rekeying the master bedroom and family room patio doors, but not $150 for a smart key (Item #16), 7.6 Stucco splatter (Item #25), 7.7 The drywall repairs around the lights above the kitchen peninsula (Item #28), 7.8 The missing GCFI outlet for the garbage disposal (Item #29), the new crack in the ceiling (Item #41), BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 7.9 The cracked mirror (Item #50), and 7.10 Proof of the termite treatment (Item #59). Therefore, Complainant established cause to suspend or revoke Respondent’s

contractor’s license under A.R.S. § 32-1154(A)(3),29 namely A.A.C. R4-9-108.30

8. Complainant did not establish that Respondent’s license should be

suspended or revoked if it fails to return to Complainant the $7,335.00 that it charged

for supervision. It appears that much of the parties’ dispute is financial and only

incidentally involves workmanship. The legislature has not empowered either the

Office of Administrative Hearings or the Registrar to adjudicate or award money

damages.31 Complainant may seek additional damages form Respondent under a

quantum meruit or some other equitable theory in a court of competent jurisdiction.

9. Because construction is not a perfect art, normally a contractor must be

allowed an opportunity to remedy poor workmanship before the Registrar will suspend

or revoke the contractor’s license. Although a directive was issued in this case, it did

not provide any specific work that Respondent was required to complete or correct to

avoid having its contractor’s license suspended. By the time that the directive was

issued, the parties’ relationship had deteriorated to the point where it was no longer possible for Respondent to complete the project. Under the circumstances, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).32 //// ////

A.R.S. § 32-1154(A)(3) includes among the grounds to suspend or revoke a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires 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.” See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). A.R.S. § 32-1154(A)(22) includes among the grounds to suspend or revoke a contractor’s license, “[f]ailure 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.” (Emphasis added.) RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order

in this matter, Respondent Dyggz Developers, LLC’s License No. ROC 299849 shall be

suspended for seven calendar days.

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

five days from the date of that certification.

Done this day, May 28, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors