ALJDEC decisions subject to certification as final

2018A-3115-CHC-ROC · Registrar of Contractors · 2018-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2018 APPEARANCES: Complainant Thomas G. Hendrix appeared on his own behalf. Respondent A R C H Construction Corp. was represented by Charles Ayers. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT A R C H Construction Corp. (Respondent) is the holder of License No. 128397 issued by the Arizona Registrar of Contractors (Registrar). In January 2018, Thomas G. Hendrix (Complainant) entered into a verbal contract with Respondent for a remodeling project. The parties did not execute a written contract until March 2018. On or about July 6, 2018, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project. The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton 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 August 27, 2018.

Complaint Items 1 through 11 and 13 through 15, were all substantiated and Respondent was ordered to complete the project per the signed contract. Following the issuance of the written directive, Respondent performed some of the work detailed in the directive. After the deadline in the directive expired, Investigator Melton was notified all of the work was not completed. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22). Investigator Melton testified as to her observations during the jobsite and prehearing inspections. Investigator Melton noted that the debris was still in the back yard and the drywall on the ceiling of the garage was not completed. Complainant testified that in January 2018, the parties entered into a verbal contract, but when he requested a detailed accounting of the project, Respondent refused. Complainant stated that after the directive was issued, everything was completed except the clean up and the garage ceiling. Complainant stated that he had other contractors complete the work after Respondent failed to comply with the directive. Complainant testified that the contract provided “[c]lean-up will happen on a regular basis, since the house is being lived in while the work is in progress.” Complainant stated that Respondent failed to remove all the construction debris during the project. Complainant indicated that he had received notices from the city that he would be fined for debris in the front of the house, so he paid someone else to remove the debris to avoid the fines. Hein Schoustra, Respondent’s Owner and Qualifying Party, testified that the written contract included “[d]umpsters to haul away construction debris ($1,500 allowance)” and Respondent had spent $750.00 more than the allowance during the course of the project. Mr. Schoustra avowed that Complainant requested certain cabinets be retained for his use. Mr. Schoustra indicated that he was uncertain which cabinets Complainant wanted to keep, so he left all of them there. Mr. Schoustra also stated that Respondent was unable to complete the garage ceiling because Complainant failed to empty the garage to allow access to the area. Administrative notice is taken of Respondent’s prior License record on December 21, 2018. Such prior License record reflects that Respondent’s License No. 128397 was first issued on October 13, 1997, and is current. Such prior License record also reflects that there were no other open complaints and no complaints resulting in discipline or resolved/settled/withdrawn complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The evidence established that Respondent failed to complete the work on the ceiling of the garage and failed to haul away the construction debris. Therefore, Complainant established that Respondent did not diligently perform and compete the tasks undertaken during the project in violation of A.A.C. R4-9-108,[1] and thereby of A.R.S. § 32- 1154(A)(3).[2] 4. The evidence established that Respondent did not compete all of the corrective work following the Directive being issued. While Respondent asserted a denial of access as to the garage ceiling, Respondent did not contradict that other work remained undone and was completed by other contractors after the deadline in the directive expired. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 128397 for a period of one day. 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 license, 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 will be 40 days from the date of that certification. Done this day, December 21, 2018.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.A.C. R4-9-108 requires that “[a] contractor shall perform all work in accordance with . . . professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.” [2] 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.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against 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.”

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