ALJDEC decisions subject to certification as final

2019A-06359-CHC-ROC · Registrar of Contractors · 2020-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott R Allen,

COMPLAINANT

Dahl Luxury Homes LLC,

License No. ROC 276021,

RESPONDENT

No. 2019A-06359-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, 2020

APPEARANCES: Complainant Scott R. Allen appeared on his own behalf. Derek Dahl, Owner and Qualifying Party, appeared on behalf of Respondent Dahl Luxury Homes LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Dahl Luxury Homes LLC (Respondent) is the holder of License No. 276021 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 9, 2017, Scott R. Allen (Complainant) entered into a contract with Respondent for, among other things, flooring.

On or about December 27, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Nelsen. After a jobsite inspection, Investigator Nelsen issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated 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 provide the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 20, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 – (Jack N Jill Bathroom) Floor- Un level more than a 1⁄4” in 12 feet.

Investigator’s Observation: The area in question was identified in complaint # 2019-03936. The item in question is now 1/16” out of the 1/4” in 12” standard and should be corrected. . . .

Compliance Item: 5 – Nook/Kitchen floor- Un level more than 1/4” in 12 feet.

Investigator’s Observation: The area in question, behind the dining table was out of standards and should be corrected. . . .

Compliance Item: 10 – Office Right Floor- Un level more than a 1/4” in 12 feet.

Investigator’s Observation: The area behind the desk exceeded the standard and should be corrected. . . .

Compliance Item: 11 – Office Left Floor- Un level more than a 1/4" in 12 feet.

Investigator’s Observation: The area behind the desk exceeded the standard and should be corrected. . . .

Compliance Item: 12 – Living Room Floor- Un level more than a 1/4" in 12 feet.

Investigator’s Observation: Near the left entrance to the living room, there was a peak in the floor that exceeded the standard and should be corrected. . . .

Compliance Item: 17 – Bump in floor under carpet in basement

Investigator’s Observation: There appears to be a piece of debris under the carpet in the center of the room, this was identified at the jobsite inspection. It appears to be about the size of a nickel. The Respondent should correct the issue.

Following the issuance of the written directive, Respondent addressed the flooring in the Jack and Jill bathroom, but did not correct the issues in the office, kitchen, or basement. After the deadline in the directive expired, Investigator Nelsen was notified that not all of the corrective work had been performed.

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; and A.R.S. § 32-1154(A)(22).

Investigator Nelsen testified that the complaint was first assigned to Investigator Chris Fultz, but he became involved at some point. Investigator Nelsen stated the final deadline for compliance with the written directive was April 20, 2020.

Complainant admitted that the corrective work in the Jack and Jill bathroom had been completed, but represented the rest of the items had not been corrected. Complainant testified that he had been willing to let Respondent complete the work on the flooring from February 5, 2020, through April 20, 2020.

Derek Dahl, Respondent’s Owner and Qualifying Party, agreed that the wood flooring was out of compliance with the Registrar’s standards. Mr. Dahl indicated that he had purchased the wood to make the repairs, but had not been allowed to perform the work after April 20, 2020. Mr. Dahl also stated that Respondent pulled up the carpet in the basement in an attempt to determine the source of the bump in the floor, but was unable to find any cause for the bump.

Administrative notice is taken of Respondent’s prior License record on July 27, 2020. Such prior License record reflects that Respondent’s License No. 276021 was first issued on January 23, 2012, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint 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 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 suspend Respondent’s License No. 276021 for a period of one day.

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, July 27, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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