ALJDEC decisions subject to certification as final
2019A-02535-CHC-ROC · Registrar of Contractors · 2019-12-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Richard Hauptmann,
COMPLAINANT,
v.
CJ Constructors, LLC,
ROC License: ROC 311907,
RESPONDENT.
No. 2019A-02535-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 12, 2019
APPEARANCES: Complainant Richard Hauptmann appeared on behalf of himself. Dennis Danforth appeared on behalf of Respondent CJ Constructors, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
1. At all times relevant to this matter, Dennis Danforth owned CJ Home Enhancements (CJ Home).
2. Mr. Danforth nor CJ Home were licensed contractors in the State of Arizona.
3. On or about October 21, 2015, Complainant Richard Hauptmann and CJ Home entered into a verbal contract to remodel Mr. Hauptmann’s home located at 3641 N. 36th Street, Phoenix, AZ (home), for $100,000.
4. On or about October 21, 2015, CJ Home began construction on
Mr. Hauptmann’s home.
5. On March 8, 2017, the Arizona Registrar of Contractors (Registrar) issued a contractor’s license to CJ Constructors, LLC (CJ Constructors). Mr. Danforth was the qualifying party for CJ Constructors.
6. In September of 2018, Mr. Hauptmann and CJ Constructors entered into a written residential contract regarding the outstanding remodeling work to be performed by CJ Contractors at his home. The work described in the written contract included concrete, masonry, doors and windows, finishes, specialties to the architectural garage and garage door, millwork, mechanical plumbing, electrical, and landscape work.
7. On September 25, 2019, CJ Constructors issued an estimate to
Mr. Hauptmann for the following work: complete framing, windows, insulation, skylights and finish roof, drywall tape and texture, cabinets throughout the house, quartz C-top, paint interior nad exterior, stucco exterior, carpet all bedrooms, complete pluming and all fixtures, complete electrical, complete hvac, work for all showers, doors and base, garage door, and landscape nad pavers. The amount of the estimate was $53,516.03.
8. As of August 14, 2018, Mr. Hauptmann had paid CJ Home and CJ Constructors at least $152,000 for the home remodeling project.
9. On or about May 15, 2019, CJ Home stopped work on the home.
10. On or about May 15, 2019, Mr. Hauptmann filed a complaint with the Registrar alleging poor work and abandonment on the part of CJ Constructors.
11. On June 25, 2019, Investigator Randy Morris completed a job site inspection.
12. On June 29, 2019, Investigator Morris mailed a Directive to CJ Constructors’ current mailing address.
13. Through the Directive, the Registrar directed CJ Constructors to remedy the following violations by appropriate means by July 17, 2019:
Complaint Item 1: “Job has been abandoned.”
Investigator’s Observation: Verified work has stopped at the job site, most materials, equipment, waste disposal systems and safety barriers are not present. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 2: “Plumbing is incomplete.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 3: “Ductwork is incomplete and not done properly.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 5: “Electrical is not complete and appears to not have been completely done properly.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 6: “Framing is incomplete & not done properly. Dry rot wood was left instead of being
replaced.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 7: “Exterior is not complete.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 8: “Landscaping is not complete.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 9: “Roof shingles do not match. There are two different colors.”
Investigator’s Observation: Verified two different colors of roof shingle installed. Allegation is
substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not
performed in accordance with professional industry standards.
Complaint Item 10: “Drywall not installed.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 11: “Finishes not installed.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 12: “Skylights not installed.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
Complaint Item 13: “Insulation incomplete.”
Investigator’s Observation: Verified that the work has not been completed. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) (Abandonment)
14. On July 18, 2019, M. Danforth sent an electronic mail message (e-mail) to Mr. Hauptmann stating that he just received his email. Mr. Danforth asked
Mr. Hauptmann to call him. Mr. Hauptmann responded to Mr. Danforth the same day and stated that he did not want to communicate by phone to avoid misunderstandings.
Mr. Hauptmann stated that he would communicate by e-mail.
15. CJ Constructors did not remedy the work in the Directive by the deadline.
16. On August 19, 2019, the Registrar issued a Citation against CJ Constructor’s license. The Citation contained allegations that CJ Constructors may have violated Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(1), (A)(12), (A)(3)(specifically, Ariz. Admin. Code section R4-9-108, and (A)(22).
17. CJ Constructors filed a timely appeal to the Citation.
18. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
19. A hearing was held on November 12, 2019.
20. At hearing, Mr. Hauptmann testified on behalf of himself and presented the testimony of his daughter-in-law Daniella Hauptmann. Mr. Danforth testified on behalf of CJ Constructors. Investigator Morris testified regarding his investigation of the complaint, job site inspection, and issuance of the Directive.
21. Mr. Hauptmann testified that CJ Constructors abandoned the remodeling project and performed poor work. Mr. Hauptmann contended that it has paid $200,000 for the remodeling project.
22. Mr. Danforth contended that the price of the project increased from $100,000 because the existing additions to the home were never permitted.
Mr. Danforth also argued that the conditions were unforeseen. Mr. Danforth explained that after permits were received, Mr. Hauptmann requested changes in the construction which increased the price. Mr. Danforth contended that of the $200,000 paid by
Mr. Hauptmann, $48,000 was for two other projects.
23. Mr. Danforth stated that he did not receive the Directive. Mr. Danforth testified that he could not complete additional work because Mr. Hauptmann owed him money.
24. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 2, 2019, there is only one open complaint against CJ Constructor’s license. The Registrar has never before taken disciplinary action against CJ Constructor’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G) (2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 24 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238 439 P.2d 805, 809 (1968) ("Courts will not place an absurd an unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
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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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
8. The preponderance of the evidence shows that Respondent abandoned the contract without legal excuse, which is a violation of A.R.S. § 32-1154(A)(1) and (A)(3).
9. The preponderance of the evidence shows that Respondent did not
perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
10. The preponderance of the evidence shows that Respondent failed to correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
11. There was insufficient evidence provided at hearing to establish a claim for restitution.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 311907 of CJ Constructors, LLC shall be suspended for a period of 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 will be 40 days from the date of that certification.
Done this day, December 2, 2019.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors