ALJDEC decisions subject to certification as final

2020A-00563-CHC-ROC · Registrar of Contractors · 2020-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel and Victoria Wint,

COMPLAINANT,

Mirage Custom Homes LLC,

DBA: Hoctor and Sons Construction,

License No. ROC 226450,

RESPONDENT.

No. 2020A-00563-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 3, 2020 and July 23, 2020

APPEARANCES: Complainants Daniel and Victoria Wint represented themselves. Philip Hoctor represented Respondent Mirage Custom Homes, LLC,

DBA: Hoctor and Sons Construction (Mirage).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

On or about October 24, 2018, Complainant and Mirage entered into a residential construction project wherein Mirage would add a master bedroom and two bathrooms to Complainant’s existing home.

Complainant operated an assisted living facility out of their home.

On or about March 16, 2019, Mirage began work under the contract.

On or about December 15, 2019, Mirage stopped work.

On or about February 3, 2020, the Arizona Registrar of Contractors (Registrar) received a complaint from Complainants alleging poor work and abandonment on the part of Mirage.

On or about February 19, 2020, Investigator Steve Klein completed a jobsite inspection. Mirage agreed to complete the job within a few weeks at the jobsite inspection.

After Mirage failed to complete the job, Investigator Klein issued a Directive to Mirage. The March 6, 2020 Directive provided in relevant part, 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 March 23, 2020.

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:

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, , local building codes and manufacturers installation

instructions.

Mirage did not complete the project by March 23, 2020, due to the Coronavirus (COVID-19) outbreak.

The Registrar issued a Citation against Mirage, charging possible violations of A.R.S. § 32-1154(A)(1), A.A.C. R4-9-108, and thereby Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).

Mirage filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

On April 30, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on June 3, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

A hearing was held on June 3, 2020. A further hearing was conducted on July 23, 2020.

At both hearings, Daniel Wint and Victoria Wint testified on behalf of themselves. Mr. Hoctor testified on behalf of Mirage.

Ms. Wint asserted that Mirage promised that it would complete the work, but never returned. Ms. Wint contended that Mirage used COVID-19 as an excuse to avoid completing the work. Ms. Wint contended that Mirage’s construction work did not require that Mirage enter the existing home where the assisted living facility was being operated.

Mr. Hoctor explained that he was unable to hire workers to complete the project during the time period for compliance, due to the danger posed by COVID-19 and the high risk of contracting the virus at assisted living facilities. Mr. Hoctor contended that the home addition was under the same “roof” as the existing home because Mirage would align the roof lines to build the additional home.

Mr. Hoctor stated that Complainants continually changed their minds regarding the work Complainants wanted Mirage to perform. Mr. Hoctor also stated that the construction industry was busy and it was difficult to hire workers. In addition, Mr. Hoctor stated that it was difficult to obtain the necessary approvals through the City to complete construction.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

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 section 5 (1960).

The undisputed evidence established that Mirage abandoned the contract,

which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).

The preponderance of the evidence shows that Mirage 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.

4. The preponderance of the evidence shows that Mirage failed to

correct the items listed in the Registrar’s Directive. However, upon consideration of the evidence presented, Mirage had valid justification for failing to complete the Directive by March 23, 2020 due to the danger presented by the COVID-19 outbreak.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar suspend License No. 226450 of Mirage Custom Homes LLC, DBA: Hoctor and Sons Construction for day.

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-137160-45720000Done this day, August 12, 2020.

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 is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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