ALJDEC decisions subject to certification as final

2018A-455-CHC-ROC · Registrar of Contractors · 2018-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel Louis Shingledecker,

COMPLAINANT,

v.

All American Framing and Remodel, LLC,

License No:

251512

RESPONDENT.

No. 2018A-455-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 26, 2018

APPEARANCES: Complainant Daniel Louis Shingledecker appeared on behalf of himself. Brent Beckham appeared on behalf of Respondent All American Framing and Remodel, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On April 10, 2018, the Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on May 25, 2018, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent All American Framing and Remodel, LLC (“All American”), holds license 251512 issued by the Registrar.

Brent Beckham is All American’s qualifying party.

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 All American may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3),(A)(12), (A)(16), and (A)(22). The Registrar also alleges that All American may have violated Ariz. Rev. Stat. section 32-1158(B). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke All American’s license.

On March 4, 2017, All American and Complainant Donald Gene Shingledecker entered a home remodeling agreement, which including the installation of a detached garage. The agreement did not advise Mr. Shingledecker of his right to file a Complaint with the Registrar against All American for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B), and did not provide the Registrar’s telephone number or website address.

All American held a R-61 Carpentry, Remodeling and Repairs license. The R-61 license did not cover the installation of a detached garage.

On or about March 3, 2017, All American began work under the contract and installed a detached garage.

On or about February 1, 2018, the Registrar received a Complaint from Mr. Shingledecker alleging that All American performed poor work when it remodeled his home.

On or about February 23, 2018, Registrar Investigator Steve Philpot (“Investigator Philpot”), conducted a job-site inspection in response to the Complaint.

11. On March 2, 2018, Investigator Philpot issued a Directive to All American. The Directive provides, in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

Investigator’s Observation: Respondent admitted at the job site inspection that he wired the project with the help of one of his employees Scott Nasy, and that a licensed electrical contractor was not used for the project. The respondent shall hire a licensed electrician to inspect the work, any code violations or deficiencies shall be corrected by a properly licensed electrician.

Complaint Item 15: Transition pieces was not installed from Cabin roof to porch roof

Complaint Item 16: J-channel was not installed on sides of door garage door and vents

Complaint Item 18: Garage should have still / head edges installed above the door and garage door and vents

12. Through the Directive, the Registrar ordered All American to remedy the

alleged violations by appropriate means no later than October 19, 2018.

13. Mr. Beckham purchased all the materials to correct the work under the Directive. However, on March 19, 2018, Mr. Shingledecker sent Mr. Beckham a text telling him that he did not want him or any of All American’s employees on his property. Later that day, Mr. Shingledecker called Mr. Philpot and asked him to tell Mr. Beckham that he could come and perform the corrective work on his property. Mr. Philpot informed Mr. Beckham that Mr. Shingledecker would allow him back on his property. However, Investigator Philpot advised Mr. Beckham to accept the complaint. Therefore, Mr. Beckham did not return to Mr. Shingledecker’s property.

14. At hearing, Mr. Shingledecker testified on behalf of himself. Mr. Beckham testified on behalf of All American. Mr. Shingledecker contended All American performed poor work on his property. Mr. Beckham testified that he did everything that he could do to please Mr. Shingledecker. Mr. Beckham did not dispute that he contracted outside the scope of his license.

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. Ariz. Rev. Stat. section 32-1154 (A)(22) provides:

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. The undisputed evidence established that All American did not provide Mr. Shingledecker with a contract that included its business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A). The preponderance of the evidence established that All American violated Ariz. Rev. Stat. section 32-1154(12) and Ariz. Rev. Stat. section 32-1158(A) and (B).

6. The preponderance of the evidence established that All American

contracted outside of the scope of its license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16).

7. The preponderance of the evidence established that All American had a valid justification for failing to comply with the terms of the written Directive issued in this matter. On the last day of the Directive, Mr. Shingledecker informed Mr. Beckham that he and All American would not be allowed back on this property. Although Investigator Philpot informed Mr. Beckham later that day that Mr. Shingledecker had changed his mind, it is undisputed that Investigator Philpot informed Mr. Beckham that he should just accept the complaint. 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. section 32-1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend All American’s License No: 251512 for one day.

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, July 16, 2018

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors