ALJDEC decisions subject to certification as final

2019A-05097-CHC-ROC · Registrar of Contractors · 2020-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andy M Sylvia and Robert Hackwell

COMPLAINANTS

Dumac LLC,

License No. 303678,

RESPONDENT

No. 2019A-05136-CHC-ROC

No. 2019A-05097-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 13, 2020

APPEARANCES: Complainants Andy M. Sylvia and Robert Hackwell appeared and were represented by Eric L. Walberg. Respondent Dumac LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Dumac LLC (Respondent) is the holder of License No. 303678 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 27, 2017, Complainant Andy Sylvia signed a contract with Respondent for the construction of a new home. On or about December 4, 2017, Complainant Robert Hackwell signed a contract with Respondent for the construction of a new home. Mr. Sylvia and Mr. Hackwell are related through marriage and contracted with Respondent to have the two homes built at the same time on adjoining parcels of property.

Case Number 2019A-05097-CHC-ROC

On or about October 9, 2019, the Registrar received a Complaint against Respondent from Mr. Sylvia alleging abandonment and poor work with respect to the project. Mr. Sylvia indicated he had paid $37,000.00 Respondent toward the total project cost of $70,000.00.

The Registrar assigned the complaint to Investigator Chris Allison. On or about November 26, 2019, after a jobsite inspection, Investigator Allison issued a written directive to Respondent that provided as follows:

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 20, 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 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 1: Partial frame structure went up, warped boards

Investigator’s Observation:

At the time of inspection, the exterior walls were framed. However, the framing has been left exposed for so long some materials used are now unsuitable. Respondent shall evaluate material and repair/replace in an appropriate manner.

Governing Rule: ARS 32-1154(A)(3) Namely R4-9-108

. . . .

Complaint Item 2: Work abandoned

Investigator’s Observation:

At the time of inspection, the project was at the same stage with no apparent progress made since. The 7/29/2019. It is not uncommon for unforeseen conditions to occur in the construction industry, however the time line on this project has exceeded what would be generally acceptable by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Governing Rule: ARS 32-1154(A)(1) and ARS 32-1154(A)(3) Namely R4-9-108

All errors in original.

Following the issuance of the written directive, the parties agreed to extend the deadline for compliance with the written directive. On or about January 23, 2020, Investigator Allison issued an addendum to the written directive that added the following advisement:

DUE TO THE ADDENDUM TO THE [CONTRACT] AGREED TO BY BOTH PARTIES THE NEW DUE DATE FOR THE DIRECTIVE IS JULY 1, 2020.

After the deadline in the updated directive expired, Investigator Allison was notified the corrective work had not been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

Case Number 2019A-05136-CHC-ROC

On or about October 11, 2019, the Registrar received a Complaint against Respondent from Mr. Hackwell alleging abandonment with respect to the project. Mr. Hackwell indicated he had paid Respondent $23,000.00 toward the total project cost of $70,000.00.

RESTRICTIONS

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

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Work Abandoned

Investigator’s Observation:

At the time of inspection, the subfloor was laid. It appears that there has been not work performed on the project since October of 2018. It is not uncommon for unforeseen conditions to occur in the construction industry, however the time line on this project has exceeded what would be generally acceptable upon in the contract.

Respondent shall complete the project per original contract agreement, properly executed change orders, local building codes, and manufacturers installation instructions.

Governing Rule: ARS 32-1154(A)(1) and ARS 32-1154(A)(3) Namely R4-9-108

DUE TO THE ADDENDUM TO THE CONTRACT AGREED TO BY BOTH PARTIES THE NEW DUE DATE FOR THE DIRECTIVE IS JULY 1, 2020.

After the deadline in the updated directive expired, Investigator Allison was notified the corrective work had not been performed.

Hearing Evidence

The Registrar referred the matters to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on May 13, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. By order of the Office of Administrative Hearings, the hearing was held telephonically on May 13, 2020.

Respondent did not provide a telephone number at which it could be reached for the hearing and did not request that the hearing be continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Allison testified as to his observations of the projects at issue and noted that the materials on the site had been exposed to the elements for so long that they were largely not useable.

Mr. Sylvia and Mr. Hackwell both testified that Respondent failed to complete the work as contracted and they were left without a home on the land for more than two years. Both also testified as to the monetary damages they had experienced as a result of Respondent’s failure to complete the work.

Administrative notice is taken of Respondent’s prior License record on June 1, 2020. Such prior License record reflects that Respondent’s License No. 303678 was first issued on March 11, 2016, and revoked on May 28, 2020. Such prior License record also reflects that there were six open complaints, two resolved/settled complaints, and one complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of the Notice of Hearing that the Registrar mailed and emailed to Respondent at its addresses of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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).

The evidence established that Respondent entered into contracts with Mr. Sylvia and Mr. Hackwell and did not perform the contract. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 303678.

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.

-54864001

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-137160-45720000Done this day, June 2, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000