ALJDEC decisions subject to certification as final

2018A-1936-CHC-ROC · Registrar of Contractors · 2018-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janice L Leitner,

COMPLAINANT,

v.

A B C Building Corp,

License No:

268333

RESPONDENT.

No. 2018A-1936-CHC-Registrar

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 13, 2018

APPEARANCES: Complainant Janice L. Leitner appeared on behalf of herself.

Rolf Micola appeared on behalf of Respondent A B C Building Corp.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On July 2, 2018, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on August 10, 2018 by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent A B C Building Corp (“A B C Building”) holds license number 268333 issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that A B C Building may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, Registrar may suspend or revoke A B C Building’s license.

In 2015, Complainant Janice L. Leitner entered into a home remodeling contract with A B C Building.

ABC performed construction work on Ms. Leitner’s home. However, Ms. Leitner, Ms. Leitner’s former roommate, and friends of person named “Jose” also performed work under the contract, before the complaint was filed. Ms. Leitner, Ms. Leitner’s roommate, and the friends of “Jose” were not employees or subcontractors of A B C Building.

On or about May 8, 2018, Ms. Leitner filed a complaint with the Registrar alleging workmanship and other deficiencies on the part of A B C Building.

On or about May 18, 2018, Investigator Steve Klein conducted a job-site inspection.

On or about May 18, 2018, Investigator Klein issued a Directive to A B C Building. The May 18, 2018 Directive provides, in relevant part, as follows:

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

Complaint Item 1: No gates were put up or provided

Respondent shall complete project per original contract agreement or properly executed change orders.

Complaint Item 3: Baseboards and Crown molding thru out house were not properly attached or sealed

Verified baseboard unglued, Respondent agreed to correct.

Complaint Item 8: Contract was not completed.

Respondent shall complete project per original contract agreement or properly executed change orders.

Complaint Item 10: Tile floor not correctly installed-grout starting to break up, not smooth tipping

Verified voids in grout.

Lippage / Tiles are to be no greater than 1/32” between individual tiles.

Complaint Item 12: Kitchen sink and faucet not properly installed.

Kitchen sink is installed on a temporary OSB counter top.

Complaint Item 13: Hot water line in master bath rattles

Verified water hammer.

Through the Directive, the Registrar ordered A B C Building to correct the items listed in the Directive no later than 5:00 p.m. on June 4, 2018.

On or about June 8, 2018, Investigator Klein received an electronic mail message (“e-mail”) from Ms. Leitner stating that A B C Building had not complied with the Directive.

At hearing, Ms. Leitner testified that she never entered into an agreement with A B C Building Corp. Ms. Leitner testified that the agreement was with Jose.

A B C Building contended that Ms. Letiner was satisfied with the work that it performed and that its work did not fall below minimum workmanship standards.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.

section 32-1154(A).

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 a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. The preponderance of the evidence does not show that A B C Building

violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because the weight of the evidence shows that the work was performed in part by persons who were not employed or subcontracted by A B C Building. There was insufficient evidence presented to assess whether A B C Building’s work did not meet minimum workmanship standards.

5. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of Ariz. Rev. Stat. sections 32-1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

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, September 24, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors