ALJDEC decisions subject to certification as final

2020A-02964-CHC-ROC · Registrar of Contractors · 2020-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Laurie Ann DiGiantomasso,

COMPLAINANT

Dreamstyle Remodeling, Inc.,

License Nos. 260542, 323292,

RESPONDENT

No. 2020A-02964-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 24, 2020

APPEARANCES: Complainant Laurie Ann DiGiantomasso appeared on her own behalf. Guy Bluff, Esq. represented Respondent Dreamstyle Remodeling, Inc. Mark Miller and Linda Miller appeared as witnesses for Respondent Dreamstyle Remodeling, Inc. Arizona Registrar of Contractors Investigator Jim Dimond was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Dreamstyle Remodeling, Inc., (“Respondent”) is the holder of License Nos. 260542 and 323292 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about September 15, 2018, Laurie Ann DiGiantomasso (“Complainant”) contracted with Respondent for Respondent to construct a sunroom on the existing deck of her home located at 3744 East Sheldon Road in Prescott, Arizona.

On or about June 18, 2020, the Registrar received a Complaint against Respondent from Complainant with respect to the project.

The following items were delineated in the Complaint:

Mark Miller Verbally, pledged & promised then sealed, with his handshake. "Deck would not be an issues & would meet my time frame demand. Tricking & scamming owner, into signing, a binding contract. Promised permit office would not delay permit. Promised; snow level & elevation is not a problem. Promised undocumented home; would not cause any delay, s to have completion of sunroom before first winter snow 2018. Would be met, to enjoy winter months.

Original; contract sunroom materials & style. I was unable to get a loan for. Side View of Prescot Property with details.pdf is the marketing home sale about home.

Second contract was only to change; flooring & size with a locked in price of $20,000.00 cash. I was told, in order to get a loan for $9,400.00. Paperwork clearly shows must be engineering Mark Miller lied & hid this fact at time of making verbal contract to make a sale. NOVEMBER 282018 FOUR SEASON ENGINEER SPECS NOTES PROPERTY MUST BE SEPARATELY ENGINEERED.pdf

Owner later found after finding original contract? Noticed, Roof stylechanged, changed to having fixed windows, Reduced to one switch. No sunroofs.

November 5, 2018 Linda Miller claimed to filed for permit. Dreamstyle failed to offer any denied, permit paperwork or call to informing of denied permit. Nov. 7, 2018 approved permit order. DIGIANTOMASSO FOUR SEASONS CALCULATION PACKAGE sealed.pdf NOVEMBER 5 2018 FIRST SUBMITTED PERMIT SO CALL ATEMPT LIARS KNEW INTENUAL DELAY.pdf

Owner, started leaving msg. Eight days after I approve for permit. On 11- 15-2019 voice msg call on my answering service. Time stamped voice mail. +15058813200_ 11-15-18_1119AM.amr Owner returned, next morning & spoke with Linda Miller

November 20, 2019, after talking to Linda Miller on the phone. I wrote email to have it in writing. Stating it is snowing. Owner attempted to overlook Dreamstyle Remolding (Breach). Requested for a complimentary, Entry door into kitchen. To make up for failing to meet. Verbal pledge promise, agreement, built, before first snow. I was Promised, Elevation & Snow amount, and most important; Deck not permitted, would not cause any, delay before first snow! Dreamstyle entered into Breach November 30 2018.JPG NOV 7 2018 7 50 am APPROVED PERMIT CONVERSION.pdf NATIINAL PROPERTY INSPECTION 2016 PG33.pdf NATIONAL PROPERTY INSPECTION 2016 PG 6.pdf NATIONAL PROPERTY INSPECTION PG 34.pdf

November 30, 2018 After listening to lie's coming from Mrs. Miller. Having a gut feeling, I decided, to make documented proof, of verbal contract agreement Mr. Miller made TO Owner, to get a written signature contract. Owner planned to spend, $20,000.00 on a walk-in closet, having zero closet or storage anywhere in home. Only, inquiring about sunroom, knowing closet space, added much, needed space & value. Then, would aide in, help for a loan for sunroom in spring. PERMITT OFFICE MARKED FOR CLOSET ADDITION TO HOME FOR ME.pdf

November 30, 2018 Linda Miller e-mail in response. Her excuse was,known before owner, entered into a binding contract. Intently stall tactics for scamming client out $20,000.00 cash. Dreamstyle failed to acknowledge their, Breach. Claiming "Permit delay, due to Deck not permitted"? Claimed elevation & snow load. Drive up to property is really obvious to elevation & snow load. I mentioned, my personal experience of snow amounts, showing papers, I received, previously at permit office to build a sunroom. Before the signing contract. This entire delay was solely on decking. Four Seasons documented paper clearly states; Must be engineered in snow load (NOTES). November 30, 2018 Documentation is for (STRAIGHT EAVE DESIGN) Original contract was for a (Cathedral). SEPTEMBER 15 2018 SECOND CONTRACT PG 2.pdf Form is Standard (prefabricated engineer specs) as Four-Seasondocumentation. Sub-contractor, only needed, to fill-in clients name & Date. Prefabricated engineer specs, clearly states? Must hire an engineer to engineer owners' home, to add sunroom. DIGIANTOMASSO FOUR SEASONS CALCULATION PACKAGE sealed (2).pdf Mark Miller blatantly; outright lied; to me when pledging his promise to be completed before first snow 2018. Miller (sales representative mng) knows the procedures for building permit. As well as the prefabricated engineer specs, along with requirement customers must have done.

I have requested several times for all, documentation. To be given to home owner, to know, what is being done. Only paperwork, offered to home owner. Basic (Four Seasons sunroom) pre- engineering made, specs documents. Nothing to prove any denial permits.

December 26, 2019, 26 days after my request for complimentary, Entry door after company Breached. Linda Miller completely, ignored our talk, & my e-mail of Breach. She admitted, there is going to be a delay. E-mail attachment, from Linda Miller showed a square, Red tiny mark. On Four Season sunroom documentation. Entry door, with a cost to owner. Dreamstylleentered into Breach November 30 2018.JPG. DEC 26 2018CHARGE FOR DOOR ENTRANCE.pdf DOC122618-[number redacted].pdf

October 3, 2 October 3, 2018 contract was set agreed amount mentioned in e-mail 9-15-2018 contract.

April 26, 2019 Cancelled, contract twice, second notice was certified letter on APRIL 26 2019 responded to CERTIFIED MAIL CANCELLATION.JPG Lying about resubmitting deck engineer may 30 2019 received.JPG Mark miller came by my home to insure his measurements with his wife sitting in jeep. To get my sunroom built. Mark never said anything other than, "few brackets" I already showed before sign contract. From home inspection paperwork, I got before, home purchase Sept. 2016.

Dreamstyle, claimed; owner owes, for engineer designed deck, cost adjustment. $14002.00. My contract was for $20,000.00. no further money by owner. I disclosed OCT 3 2018 TRIED TO ADD 500 TO SET AMOUNT.pdf I have repeatedly said "I'm locked in with contract price".

5-7-2019 Tried filing with the BBB. Staying true to the treatment of business. Dreamstyle waited 5 months & 1 0 days before a response. BBB failed to hold them accountable for response time frame took to long from Dreamstyle remodeling ? BBB Complaint DREAMSTYLE REMODELING INC.PNG BBB October 7 2019 Response.JPG ExportComplaintsBBB.doc DELAY BS.JPG.

August 5, 2019, Permit granted ready to move forward. Hassling me to allocate them to build sunroom. Already knew, I filed with BBB. Knew, This, was done, out, of pure manipulated malicious , by company.

Owner requested several times to be refunded. Until hiring a business lawyer. Dreamstyle attorney failed to respond back to my attorney. E Mail to Guy 090519 - AZ18-0040 DiGiantomasso.pdf AUGUST 28 2019 OLEARY LAW LETTER.pdf $1,504.00 cost of attorney.

After receiving a fed-x letter owner took & opened letter at attorney's office to witness. Dreamstyle Fedex Ltr 08.28.19 (1).pdf Draft to DreamStyle 082819.pdfDraft to DreamStyle 082819.pdf

Attorney fee's I have paid & still owe.

Claiming to refund what is left after the 33% cancelling fee engineer cost is absurd when, I kept my part of contract. I canceled months after they breached, & failed to respect me as a customer, using misguiding cover-up, (lie) as an excuse dely. Mark Miller (respresentive manager) had complete knowledge deck was undocumented & not signed off at permit office by previous owner.

Mark Miller would harass with, "would like to continue with project" I only wanted my money, so I could move forward. This money came from my son's death. I have mentally, been abused and harmed from millers' scams, as well as financial burden. My home is an embarrassment, appearances look like a hoarder's place. So, I refuse anybody entrance, I completely stopped caring for property. I used the last of my trust money, trying to live without adequate space losing all the way around. Ashamed, to have company over. This contract is unequal as dreamstyle remodeling has been only ones to gain. They gain unearned, tax money in their favor. I lose there too, nothing to show loss. I almost out of pure need, almost considered, to have sunroom built, after pandemic is over. Mark agrees to my full demands. I don't want a sunroom built anymore. The thought of sunroom built by dreamstyle is horrifying to allow or live in. At this point, I rather just have my originally plan for a walk-in closet built. I am so disturbed, with dishonest scams Mr. Miller pulled on me. My first home ever, owned. Paid by the death money, of only child. I hate my home, thinking of selling now. Will take a huge loss if sold, my credit is gone and I'm at financial ruin after this. My bank account & home in shambles for almost two years waiting, on & for home remodeling.

(All errors and emphasis in original.)

The Registrar assigned the Complaint to Investigator Jim Dimond. Investigator Dimond did not conduct a jobsite inspection as Complainant had informed him that no work had been performed by Respondent. Investigator Dimond issued a “general allegation letter” to which Respondent responded. Based on the items enumerated in Complainant’s filed Complaint, Investigator Dimond referred the matter to the Registrar’s Legal Department for the issuance of a Citation.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2), “[d]eparture from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another; and A.R.S. § 32-1154(A)(8), “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

Investigator Dimond testified that the permit for the project was issued on August 1, 2019, and therefore, Respondent is not in violation of A.R.S. § 32-1154(A)(2)(b). Regarding Respondent’s alleged violation of A.R.S. § 32-1154(A)(8), Investigator Dimond testified that although the project has not been completed, it was his understanding that denial of access may have played a role in Respondent’s inability to complete the project. Investigator Dimond explained that if a homeowner will not allow a contractor to enter the property, such action is considered a denial of access and then the alleged violation cannot be supported.

The parties’ contract specifies the following in pertinent part:

Any pre-existing structural, mechanical or electrical conditions unseen or undisclosed are not the responsibility of Dreamstyle Remodeling Inc. Either party may cancel this agreement within three business days from the time of acceptance. If homeowner cancels this contract after the 3-day recision [sic] period allowed by law, the homeowner agrees to pay damages equal to 33% of the contract total, plus expenses.

See Exhibit R-01.

Respondent also sent Complainant a “Dear Homeowner Letter” which advises that “[y]our order will typically take approximately ten to twelve weeks to complete from the time of your order. Processing will begin immediately and we do our best to keep our schedule, however, the following variables may affect this time frame.

Credit approval

Permit turnaround time

Weather conditions

Homeowners Association approval

Shipping delays and/or product availability”

See Exhibit R-03.

At hearing, it was evident that Complainant was extremely upset. Complainant testified that during the time of her contract with Respondent, a period of 97 days elapsed with no contact from Respondent. Complainant asserted that she would never have entered into the contract with Respondent but for Respondent’s representative’s verbal promise that Complainant could cancel her contract before the “first snow” without penalty. Complainant testified that Respondent’s representative assured her that the project would be completed before the first snowfall. Complainant asserted at hearing that she “did not agree to anything in the contract.” Complainant testified that the contract was a “receipt” and had “nothing to do with the project.” However, Complainant failed to present any probative evidence of such assurances. The provision of the contract regarding cancellation was not crossed out and initialed and there was no written provision in the contract, either handwritten or typed, indicating that the cancellation fee would not pertain to Complainant.

Complainant insisted that the deck to her home was permitted prior to her contract with Respondent and that she provided Respondent copies of a May 27, 2005 permit. However, the document to which Complainant referred at hearing was a plot plan attached to a June 16, 2005 permit application that required final approval. See Exhibit R-02. This was not an approved permit. An approved permit had not been obtained for the deck.

The credible evidence presented established that Complainant canceled her contract with Respondent several times and then changed her mind, wanting to move forward with the project. The first snow fell on or about November 30, 2018. Complainant contacted Respondent and asked for a “complimentary door” to “make up for the “breach” (Complainant asserted that Respondent breached the contract by not having completed the project by the first snow fall). Respondent issued a $1,500.00 change order for a new door. Complainant did not agree to the change order. However, Complainant allowed Respondent the opportunity to complete the project, but specified that she wanted it completed prior to April 2019.

On April 26, 2019, Complainant cancelled her contract with Respondent. Respondent informed Complainant that Respondent was waiting for engineering. Complainant asserted that Respondent “intentionally” and “fraudulently” sent incorrect documentation to the County for permitting purposes. Complainant contended that Respondent sent documentation regarding a different home to the County.

The permit for the deck was issued on August 1, 2019. Because the permit for the deck was not obtained until August 1, 2019, Respondent could not construct the sunroom prior to that date. However, by letter dated August 28, 2019, Complainant’s counsel at that time, William J. O’Leary, advised Respondent that, “ . . . At this time, our client is not inclined to allow you to perform any construction at the Premises, as she has completely lost her confidence in your ability to do the work in a professional and workmanlike manner.”

Since April 2019, Complainant has not permitted Respondent on her property. Complainant has requested that Respondent refund the full amount Complainant has paid toward the contract, in the amount of $20,000.00.

Mark Miller, Respondent’s sales representative and general manager during the time of Complainant’s contract, testified that he did not tell Complainant that the project would be completed by the “first snowfall” of the season. Mr. Miller explained that the contract was signed on September 15, 2018, and the “Dear Homeowner Letter” indicates that the project would take ten to twelve weeks which takes into account permit turnaround time and weather conditions. Given Complainant’s home location and elevation, there could be no guarantee that the project could be completed by the first snowfall.

Mr. Miller testified that within the first ninety days of the contract Respondent went to Complainant’s property to take photographs, measurements, and obtain a plot plan. Renderings were drawn on graph paper and CAD engineered on the plot plan, along with the elevations. That documentation was sent to Complainant for review and approval. Mr. Miller explained that there are not many sunroom engineers, and due to the engineers’ schedules, it took additional time for all the drawings and approvals to be obtained.

Mr. Miller credibly testified that Complainant told him that she had a valid permit for the deck. Respondent did not discover that the deck was not permitted until Respondent submitted its plans to the County for the permit for the sunroom. At that point, Respondent was advised by the County that an application for the deck permit had been filed with the County, but not approved. Mr. Miller informed Complainant of the fact that the permit for her deck had never been approved, and that the project would take longer because the deck permit needed to be obtained.

Respondent had to hire a structural engineer to prepare drawings and calculations for the deck permit. At that point, there were six inches of snow on the deck when the measurements for the engineering were taken. Once the proper documentation was obtained, Respondent had to wait for County approval. Respondent explained to Complainant the reasons for the delay included the lack of a permit for the deck. According to Mr. Miller, Respondent paid $500.00 for the structural engineer for the deck permit and did not charge Complainant for this expense.

Mr. Miller testified that contrary to Complainant’s assertion otherwise, all of the documentation submitted to the County was site specific for Complainant’s home.

Mr. Miller testified that delays were also attributable to the fact that Complainant would not take calls from Respondent from December 2018 through February 2019, and Complainant’s voicemail was full. Complainant acknowledged that she would not answer Respondent’s calls.

Mr. Miller testified regarding the contract provisions concerning the 33% cancellation fee and the fact that Complainant would be responsible for any extra costs. Mr. Miller further testified that if the parties had agreed to a completion date, such provision would have been contained in the contract.

Linda Miller, Project Coordinator, further explained that the CAD drawings were received in November 2018 and Complainant gave her approval for construction. On November 11, 2018, the drawings were submitted to the County for permitting. Respondent was informed by the County that due to the elevation of Complainant’s property, the engineering would need to be changed to accommodate a fifty pound snow load. It was at that point that Respondent discovered that the deck was not permitted.

Ms. Miller testified that the first cancellation request she received from Complainant was in April 2019. In August 2019, Respondent received the afore-mentioned letter from Complainant’s attorney.

Respondent has all of the requisite permits for the project, the materials for the project have been ordered and received and are stored in Respondent’s warehouse. Respondent has never refused to perform the work that it was contracted to perform. Complainant has denied access to Respondent to complete the project. The delays were caused by a lack of permitting for Complainant’s existing deck and engineering for the sunroom.

Administrative notice is taken of Respondent’s prior License record on October 1, 2020. Such prior License record reflects that Respondent’s License No. 323292 was first issued on January 17, 2019, and is active. Such prior License record also reflects that there were no open complaints, no resolved/settled/withdrawn complaints, and no discipline against this license. Such prior License record also reflects that Respondent’s License No. 260542 was first issued on December 29, 2009, and is active. Such prior License record also reflects that there are two open complaints, including the instant Complaint, five resolved/settled/withdrawn complaints, and one disciplinary action against this 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).

Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2).

The evidence failed to establish that Respondent departed from or disregarded a building code of this State or any political subdivision of this state in any material respect that is prejudicial to another. In this case, Respondent obtained the permit for the sunroom that it was contracted to construct. Respondent also obtained the proper permitting for the existing deck. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(2)(b).

The evidence did not establish that Respondent failed in a material respect to complete the construction project or operation for the price stated in the contract, or in any modification of the contract. The credible and probative evidence of record established that Complainant refused to allow Respondent to complete the project by denying Respondent access to do so. Therefore, Complainant failed to establish that Respondent violated of A.R.S. § 32-1154(A)(8).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s Complaint be dismissed.

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, October 13, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000