ALJDEC decisions subject to certification as final

2020A-00791-CHC-ROC · Registrar of Contractors · 2020-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael A Dye,

COMPLAINANT

Green Street Communities Inc.,

License No. ROC 282770,

RESPONDENT

No. 2020A-00791-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, 2020

APPEARANCES: Complainant Michael A Dye, appeared on his own behalf by telephone, and Lisa Melton, Inspector for the Registrar of Contractors by telephone.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Green Street Communities Inc. (Respondent) is the holder of License No. 282770 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 6, 2018, Michael A. Dye (Complainant) signed a contract with Respondent for construction on a new home. Work commenced on or about September 25, 2019, and work stopped on or about November 15, 2019.

On or about February 18, 2020, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. The original inspection was performed on March 20, 2020. Complainant was present but Respondent failed to appear.

The Investigator concluded that only complaint item 3 could not be verified.

Investigator Melton then issued a written directive on or about March 26, 2020 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. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 28, 2020.

. . .

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

Compliance Item: 1 - Stucco and tar paper on the south wall wasn’t installed properly, and as a result, water is penetrating into the interior of the house on all three levels.

Investigator’s Observation: There is evidence of water infiltration at all three levels of the structure. Cause of water infiltration needs to be identified and corrected as well any damage caused by this infiltration, contractor's investigation and correction.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 2 - Windows weren't set/sealed properly which is causing water penetrate the main stairway wall in the house.

Compliance Item: 4 - Builder sent the superintendent into the home to remove walls where water was penetrating and has not fixed them.

Investigator’s Observation: Numerous holes were created to investigate. This damage needs to corrected.

Following the issuance of the written directive, there were no attempts were made by Respondent to fix the leaks and resultant damage prior to the April 28, 2020 deadline.

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).

A Notice of Hearing was issued on June 4, 2020, and was properly noticed. Copies of the Notice of Hearing that the Registrar mailed and e-mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). Further, a subsequent Order was sent on or about June 19, 2020, informing all parties that due to the ongoing COVID-19 pandemic, the hearing would now take place via Google Meet.

Neither Respondent nor its representatives appeared at the time of the hearing. Further, Respondent has failed to otherwise provide an excuse for its failure to appear.

Ms. Melton testified that she believed that Respondent had proper notice of the Jobsite Inspection, as there she mailed the notice to the address on record with the Registrar, and it was not returned as “undeliverable”. Ms. Melton did testify however, that the electronic version of the notice was returned as undeliverable and when Ms. Melton attempted to contact Respondent by telephone, there was an automated message stating that no messages could be left at that time.

Complainant testified that he first became aware of a leaks in mid-September 2019. He further testified that he informed Respondent of the leak, and Respondent acknowledged the same via electronic mail and text messages. Further, Respondent had sent a superintendent to the site to try to determine from where the leaks were occurring.

Administrative notice is taken of Respondent’s prior License record on July 6, 2020. Such prior License record reflects that Respondent’s License No. 282770 was first issued on December 24, 2012, and is current. Such prior License record also reflects that there 5 open complaints, including the present complaint.

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. Water was leaking at all three levels of the structure, and there were holes which were left in the walls where the Respondent was trying to determine the cause of the leaks. 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 failed to complete the corrective work following the Directive being issued prior to the April 28, 2020, deadline. 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. 282770 for a period of five 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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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 13, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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