ALJDEC decisions subject to certification as final

2020A-02432-CHC-ROC · Registrar of Contractors · 2020-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gwen Ellen Maddix,

COMPLAINANT

v.

Born Again Construction LLC,

License Nos. ROC 248181, 265178,

RESPONDENT

No. 2020A-02432-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 2, 2020

APPEARANCES: Complainant Gwen Ellen Maddix appeared on her own behalf. Rural Jeffery, Owner and Qualifying Party, appeared on behalf of Respondent Born Again Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Born Again Construction LLC (Respondent) is the holder of License Nos. 248181 and 265178 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 23, 2020, Gwen Ellen Maddix (Complainant) signed a contract with Respondent for, among other things, the grading of her property for irrigation control.

On or about May 15, 2020, the Registrar received a Complaint against Respondent from Complainant alleging the project had not been completed.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein 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 July 20, 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:

Complaint #1 Just dumped piles of dirt full of rocks, sticks, wood pieces and metal pieces, I have been clearing this land for over the last year of rocks of medium to large size, I need clean dirt being I don't want my dogs digging up the berms or ground- poor work performance

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #2 Removal of rocks, sticks, wood/metal pieces brought in which are scattered throughout the yard being they just dumped the dirt- low quality material

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #3 Property not graded or leveled- no work performance

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #4 Hasn't created any berms on the property- no work performance

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #5 Concrete removed which they dumped in my yard- leaving their trash in my yard

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #6 Not willing to supply water resource for dust control and expecting me to supply it which isn't stated in the contract and didn't ask to use- lack of supplying materials needed

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #9 Neither single or double gate delivered like I was told it would be on May 4, 2020 – lack of performance and integrity

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Governing Rule: Violation of Any Rule Adopted By the Registrar 32-1154 A-3 Namely Rule R4-9-108.

Complaint #10 Gates not painted, Expresso Machiato DET 680 from Dunn Edwards, or design square designs on them as we discussed

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #11 No concrete poured in ground to hold gate lever

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #12 Locks and wood slates not done

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #13 Gates are to be rehung when finished

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Complaint #14 I was told by him that I had to purchase the locks which is on the contract, which I did so and I would like to be reimbursed

Inspector’s Observation: The job is not completed.

Respondent shall complete project per original contract agreement

Complaint #15 Taking all work material off site being I have dogs and I can't be responsible for it

Inspector’s Observation: The job is not completed.

• Respondent shall complete project per original contract agreement

Following the issuance of the written directive, Respondent did not perform any additional work on the project. After the deadline in the directive expired, Investigator Klein was notified no 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(a); and A.R.S. § 32-1154(A)(22).

Investigator Klein testified that at the time of the prehearing inspection, some work had been completed by a different contractor.

Complainant testified that during the project, Respondent wanted to use her water while it performed its work. Complainant stated that during the course of the project, Respondent agreed to pay Complainant $50.00 per day for the use of her water to complete the project, but then Respondent refused to pay and/or perform the work. Complainant avowed that Respondent made no attempt to contact her after the issuance of the written directive to complete the work on the project.

Mr. Jeffrey testified that Respondent was unable to complete the job without access to water to keep the dust down. Mr. Jeffrey asserted that Complainant had a leak prior to Respondent arriving on the job and that, in exchange for repairing the leak, Complainant agreed to let Respondent use the water on the job. Mr. Jeffery stated that if one thousand contractors were polled, none of them would include in their contracts that they were going to use the customer’s water in completing the project. Mr. Jeffery acknowledged that he did not contact Complainant regarding the completion of the project following the issuance of the written directive.

Administrative notice is taken of Respondent’s prior license record on October 22, 2020. Such prior License record reflects that Respondent’s License No. 248181 was first issued on August 25, 2008, 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(a).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Mr. Jeffery asserted that he required access to Complainant’s water, Respondent could have brought in water to complete the project in accordance with the Registrar’s 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. 248181 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.

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, October 22, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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