ALJDEC decisions subject to certification as final

2020A-04263-CHC-ROC · Registrar of Contractors · 2021-01-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Laurenz Jan Byk,

COMPLAINANT

Diamond T Consulting Inc.

License Number ROC 214315,

RESPONDENT

No. 2020A-04263-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 11, 2021

APPEARANCES: Complainant Laurenz Jan Byk appeared on his own behalf. Justin Taylor, Qualifying Party, appeared on behalf of Respondent Diamond T Consulting Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Diamond T Consulting Inc. (Respondent) is the holder of License No. 214315 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 24, 2018, Laurenz Jan Byk (Complainant) signed a contract with Respondent for the construction of a new home in Happy Jack, Arizona. The total contract price for the home was $357,912.28.

On or about September 2, 2020, 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 Philpott. After a jobsite inspection, Investigator Philpott issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 October 16, 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 reasons, 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:

Compliance Item: 1 - Lower Level Entry Doors are missing.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 2 - French Doors off of kitchen are missing.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 3 - Main Entry door is a dummy door. Final Door is missing.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 4 - Siding is only 5% complete. Builder and son put up some siding from other job and then stopped.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 5 - Rear deck and stairs are 0% complete.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 6 - Front porch and stairs are 0% complete.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 7 - Garage concrete apron and sidewalk to front porch are 0% complete.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 8 - Concrete walls are not mortar-washed and painted.

Investigator’s Observation: This complaint item is verified. The stem wall has not been textured or painted. (Note- the mortar joints were not tooled, indicating it was intended to be textured) Respondent shall correct by appropriate means.

. . . .

Compliance Item: 9 - Interior doors are missing.

Investigator’s Observation: This complaint item is verified. The master bed closet door, linen closet door in Master bath and the door to the crawlspace area are missing. Respondent shall correct by appropriate means.

. . . .

Compliance Item: 10 - Heating matt for heated flooring in Master Bath is missing.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 11 - Master Bathroom flooring is missing.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 12 - All electrical fixtures have not been installed.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 18 - The door jambs of the shop doors and doors to the garage have not been extended.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 20 - The right kitchen casement window does not open properly.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

Following the issuance of the written directive, Respondent did not take any measures to correct the items in the directive. After the deadline in the directive expired, Investigator Philpott 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)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); A.R.S. § 32-1154(A)(17); and A.R.S. § 32-1154(A)(22).

Investigator Philpott testified that Respondent’s license was suspended due to discipline on June 4, 2020, and again on July 31, 2020. Investigator Philpott stated that when a license is disciplinarily suspended, the licensee may perform warranty work, but may not move forward on existing projects. Investigator Philpott indicated that Respondent was afforded an opportunity to lift the disciplinary suspension and then complete the project as required by the written directive. Investigator Philpott also noted that Respondent’s license expired on January 1, 2021.

Complainant testified that when he entered into the contract, Respondent represented the home would be built in approximately one year. Complainant maintained that he paid Respondent $342,000.00 of the total contract price and the project was unfinished when he filed the Complaint. Complainant stated that he had paid more than 90 percent of the contract price, but the house did not have doors or windows and the exterior of the house was not complete. Complainant asserted that Respondent last worked on the project in August 2020 when a few doors were installed. In the Complaint, Complainant indicated Respondent last worked on the project on April 6, 2020.

Mr. Taylor testified that the disciplinary actions against Respondent’s license were the result of no pay complaints with the Registrar and he was unable to resolve those issues in order to lift the disciplinary suspension after the written directive was issued. Mr. Taylor denied that Respondent ever abandoned the project. As proof of Respondent’s continued work on the project, Mr. Taylor submitted a photograph of a fireplace surround completed on June 11, 2020, after Respondent’s license was suspended on June 4, 2020. Mr. Taylor also asserted that Complainant requested a number of changes and had failed to pay for them; however, Mr. Taylor acknowledged that none of the change orders he was referencing were in writing and signed by Complainant. Mr. Taylor denied telling Complainant that the project would take one year to build as the winters in Happy Jack were unpredictable and it could take 18 months to build a home in the area. Mr. Taylor testified that none of the items identified in the written directive were due to workmanship issues, just that they were incomplete.

Administrative notice is taken of Respondent’s prior License record on January 14, 2021. Such prior License record reflects that Respondent’s License No. 214315 was first issued on February 14, 2005, and expired on January 1, 2021. Such prior License record also reflects that there were two open complaints and two complaints resulting in discipline 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 entered into a contract for the project and, at some point, work on the project was delayed or slowed down to such a point that Respondent effectively abandoned the project. Accordingly, Complainant established that Respondent abandoned the project and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B).

The evidence established that Respondent continued to work on Complainant’s project after its license was suspended on June 4, 2020. Accordingly, Complainant established that Respondent contracted while its license was under suspension in violation of A.R.S. § 32-1154(A)(17).

The evidence established that Respondent did not attempt to complete the corrective work following the written 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 revoke Respondent’s License No. 214315.

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, January 14, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000