FINACT2019A-04955-CHC-ROC.pdf

2019A-04955-CHC-ROC · Registrar of Contractors · 2020-04-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Barbara Jeana Darlington , Case No. 2019-04955 COMPLAINANT, Docket No. 2019A-04955-CHC-ROC v. Sun Property Services LLC FINAL ADMINISTRATIVE License No. ROC 291627, DECISION 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 of each finding of fact or conclusion of law. 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 accepts it. CONCLUSION AND ORDER 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 May 3, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE On page 1, line 25 replace “December 5, 2019” with “October 29, 2019”. On page 4, line 23, delete “Ariz. Rev. Stat. sections 32-1158(B).” On page 5, lines 25-27, delete paragraph 3. Dated March 23, 2020.

By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

Copy mailed via USPS First Class mail March 23, 2020 to:

Respondent Sun Property Services LLC 4650 E River Rd Tucson, AZ 85718 Complainant Barbara Jeana Darlington 3294 W Canyon Ln Tucson, AZ 85745

Copy sent electronically this same date to: Office of Administrative Hearings Velma Moses-Thompson, Administrative Law Judge

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-04955 / MB

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 2.24.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Jeana Darlington, No. 2019A-04955-CHC-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION

Sun Property Services LLC, ROC License: ROC 291627, RESPONDENT.

HEARING: February 3, 2020

APPEARANCES: Complainant Barbara Jeana Darlington appeared on behalf of

herself. Rick Luker appeared on behalf of Respondent Sun Property Services, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Sun Property Services, LLC (Sun Property) holds license No. 291627 issued by the Arizona Registrar of Contractors (Registrar) 2. Rick Luker is a member of Sun Property. 3. On or about November 14, 2018, Complainant Barbara Jeana Darlington and Sun Property entered into a construction contract wherein Sun Property would build a new home and garage. 4. On or about November 19, 2018, Sun Property started work. 5. On or about June 27, 2019, Sun Property stopped work. 6. On or about September 30, 2019, Ms. Darlington filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship and abandonment on the part of Sun Property. 7. On or about December 5, 2019, Registrar Investigator Greg Johndrow conducted a job site inspection. 8. On November 5, 2019, Investigator Johndrow issued a DIRECTIVE to Sun Property that provided, in relevant part, as follows:

RECEIVED 2.24.2020 ROC LEGAL

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32- 1154(A)(3); 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.

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 2, 2019. RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for prior discipline or administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated. DIRECTIVE REQUIREMENTS

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

Complaint Item 12: "Concrete forming left on garage foundation must be removed" Investigator’s Observation: Verified, at the time of the inspection I observed a form used for the concrete has not been removed. Governing Rule: Workmanship Rule: 32-1154 A 3. RULE 4-9-108 WORKMANSHIP STANDARDS A. A contractor shall perform all work in a professional and workmanlike manner. Complaint Item 18: "The water line install was not done per plan. Owner desires to install a water conditioning system but because the garage is detached from the house and SPS 2 RECEIVED 2.24.2020 ROC LEGAL

"split" the water line after the meter, two water conditioning systems would have to be installed. The plan specified that the water line enter and serve the garage and then continue onto the house."

Investigator’s Observation: Verified, at the time of the inspection I observed the building plans presented by the complainant. The plans confirm the waterline was not to be split and should have run from the meter to the garage and then continued to the house.

Governing Rule: Workmanship Rule: 32-1154 A 2. Departure from or disregard of: Plans or specifications in any material respect that is prejudicial to another without consent of the owner or owner’s duly authorized representative and without consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Complaint Item 19: "There is a gap between the metal soffit and the stucco walls around entire perimeters of both garage and house. Roofing sub asked Owner what the intent was for this was when he came out to assess the job before starting. SPS not present. Owner referred roofing sub to SPS as Owner had no answer or solution. SPS has not come up with a solution to date."

Investigator’s Observation: Verified, at the time of the inspection I observed a gap between the metal soffit and the stucco. The gap is continuous around the perimeter of the garage and the house. Governing Rule: Workmanship Rule: 32-1154 A 3. RULE 4-9-108 WORKMANSHIP STANDARDS A. A contractor shall perform all work in a professional and workmanlike manner. Complaint Item 20a: "Concrete debris left adjacent to patio." Investigator’s Observation: Verified, At the time of the inspection I observed concrete debris adjacent to the patio and at the entry landing of the garage and the house.

Governing Rule: Workmanship Rule: 32-1154 A 3. 3 RECEIVED 2.24.2020 ROC LEGAL

RULE 4-9-108 WORKMANSHIP STANDARDS A. A contractor shall perform all work in a professional and workmanlike manner. Complaint Item 21: "Many cosmetic issues with kitchen cabinet installation performed by SPS. There are several exposed, jagged, sawcuts. In one location the cabinet support extends beyond the end cabinet base preventing installation of an end, cover panel." Investigator’s Observation: Verified, at the time of the inspection I observed both the end panel on the north side of the island and oven cabinet are not properly finished where they meet the drywall. I also observed the cabinet base / toe kick next to the refrigerator is uneven with the end panel of the cabinet.

Governing Rule: Workmanship Rule: 32-1154 A 3. RULE 4-9-108 WORKMANSHIP STANDARDS

A. A contractor shall perform all work in a professional and workmanlike manner.

9. On December 5, 2019, Investigator Johndrow performed a compliance inspection. Investigator Johndrow concluded that Sun Property appropriately corrected Complaint Item 12 and 20a. However, Investigator Johndrow found that Sun Property did not correct Complaint Items 18, 19, and 21. 10. On December 9, 2019, the Registrar issued a CITATION against Sun Property’s license wherein the Registrar alleged that Sun Property may have violated ARIZ. REV. STAT. section 32-1154(A)(1), (2)(a), (22) and 32-1154(A)(3)(specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. sections 32-1158(B). 11. Sun Property filed a timely appeal to the CITATION. 12. On December 31, 2019, the Registrar issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on February 3, 2020. 13. A hearing was held on February 3, 2020. 14. At hearing, Ms. Darlington testified on behalf of herself. Rick Luker 4 RECEIVED 2.24.2020 ROC LEGAL

testified on behalf of Sun Property. Investigator Johndrow testified regarding his investigation of the complaint, his job sites inspections, and the issuance of the Directive. 15. Ms. Darlington contended that Sun Property performed poor work when it performed construction work at her property. 16. Mr. Luker contended that Ms. Darlington failed to take the construction drawing to the fire department for approval. Mr. Luker explained that there were variances in the drawings throughout the project. Mr. Luker complained that Ms. Darlington caused construction to be delayed when she left her home for two months during the summer. 17. Administrative notice is taken of Respondent’s prior License record on February 24, 2020. Such prior License record reflects that Respondent’s License No. 291627 was first issued on May 20, 2014, and is active. Such prior License record also reflects that there is only one open complaint against Respondent, and Respondent’s license has never been disciplined by the Registrar. The lack of prior disciplinary history is a mitigating factor in imposition of discipline in this matter. 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 violation by a preponderance of the evidence. See ARIZ. REV. STAT. section 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 preponderance of the evidence shows that the issues found by Investigator Johndrow constituted workmanship issues with the installation of Ms. Darlington’s pool. 4. The preponderance of the evidence does not show that Respondent abandoned the contract in violation of ARIZ. REV. STAT. section 32-1154(A)(1). 5 RECEIVED 2.24.2020 ROC LEGAL

5. The preponderance of the evidence shows that Respondent failed to construct the project in compliance with building plans, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(2)(a). 6. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(3), namely A.A.C. R4-9-108.1 7. 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). 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. 291627 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to ARIZ. REV. STAT. section 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 ARIZ. REV. STAT. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, February 20, 2020.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

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.” 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.” 6 RECEIVED 2.24.2020 ROC LEGAL

Jeffrey Fleetham, Director Registrar of Contractors

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