ALJDEC decisions subject to certification as final

2019A-05580-CHC-ROC · Registrar of Contractors · 2020-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John M. Goodwin,

COMPLAINANT

Daniel Thomas Rowan,

DBA: DTR Remodeling,

License No. 320737,

RESPONDENT

No. 2019A-05580-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 17, 2020

APPEARANCES: Complainant John M. Goodwin appeared on his own behalf. Respondent Daniel Thomas Rowan appeared on his own behalf and was represented by James Sparks.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Daniel Thomas Rowan doing business as DTR Remodeling (Respondent) is the holder of License No. 320737 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 1, 2017, John M. Goodwin (Complainant) entered into an agreement with Respondent for a complete renovation of his residence for a total contract price of $400,000.00. Respondent did not provide Complainant with a written contract.

On or about November 8, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project. Complainant identified 79 specific items in the complaint. Complainant also indicated he had paid $482,071.00 on the project.

The Registrar assigned the complaint to Investigator Randal Morris. On January 20, 2020, after a jobsite inspection, Investigator Morris issued a written directive to Respondent that directed Respondent to correct, by appropriate means, all but nine of the complaint items by February 7, 2020.

Following the issuance of the written directive, Respondent did not contact Complainant to arrange a time to perform the corrective work. After the deadline in the directive expired, Investigator Morris was notified no corrective work had been performed.

On February 14, 2020, Investigator Morris conducted a compliance inspection, at which time he determined none of the items in the directive had been corrected.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Morris testified as to his involvement in this matter.

Complainant testified that the major items that needed to be addressed were the roof, the telescoping window, the stucco, the sliding glass door, and the pocket doors. Complainant denied hiring anyone else to perform work on the project outside of the landscaper.

Mr. Rowan testified that the contract in this matter was a fixed/variable contract in that it was for a fixed price, but the cost changed as Complainant added things or changed his mind. Mr. Rowan asserted that Complainant still owed $126,600.00 on the contract. Mr. Rowan did not submit change orders or documentation of how he determined the amount owing on the contract. Mr. Rowan stated that he had lost significant money on this project and sold his house to pay for the project. Mr. Rowan argued that Complainant interfered with Respondent’s contract with subcontractors when Complainant paid them directly.

Administrative notice is taken of Respondent’s prior License record on August 31, 2020. Such prior License record reflects that Respondent’s License No. 320737 was first issued on July 6, 2018, and has been inactive since February 13, 2020. Such prior License record also reflects that there were no other open complaints oe prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Respondent argued that the lack of payment justified his refusal to perform the corrective work, lack of payment is not a justification to a failure to comply with a written directive. 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 suspend Respondent’s License No. 320737 for a period of fourteen (14) days.

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)(7), 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.

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-137160-45720000Done this day, September 1, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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