ALJDEC decisions subject to certification as final

2020A-05374-CHC-ROC · Registrar of Contractors · 2021-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Suzanne Cohen,

COMPLAINANT

Mountaintop Maintenance & Remodel LLC

License No. ROC 323357,

RESPONDENT

No. 2020A-05374-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 30, 2021

APPEARANCES: Complainant Suzanne Cohen appeared on her own behalf. Respondent Mountaintop Maintenance & Remodel LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Mountain Maintenance & Remodel LLC (Respondent) is the holder of License No. 323357 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 25, 2020, Suzanne Cohen (Complainant) entered into a contract via text messaging with Respondent for the construction of a deck on her home. The total agreed upon price was $12,000.00. Complainant ultimately paid Respondent $12,500.00 for the construction of the deck.

On or about November 13, 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.

On or about December 4, 2020, 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 January 4, 2021.

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 - The contractor was hired to remove the existing deck

and build a bigger deck on the back of our home. All the initial communications were via text message including the price. There was no written contract. The contractor made it clear he was obtaining the permit. In fact, before he demolished the existing deck he told me that the city said it was ok to demolish the deck and that the permit would be coming the next week. After demolition, when I again inquired about the permit, the contractor told me he was proceeding without the permit but would be taking pictures for the inspection.

I acknowledged his representation saying “ok”. I then paid him $6,000. Based on all the communications I believed a permit had been requested by the contractor.

After the deck was completed, I asked the contractor in person where the permit was. The contractor replied, “What do you need it for you are not selling the house?" However, he affirmed he would provide the permit. He never said he had not ever applied for the permit.

The contractor then sent me a bill for more than the original quote.

After further discussions about the increased amount and the as yet obtained permit, we agreed to pay $6500 towards the bill and the contractor promised to obtain post construction approval. We agreed to the higher price.

Months later, the contractor told me had had started the process to obtain the permit. Concerned about the delay, I contacted the city and discovered that no permit had ever been requested at any time. Not even before the demolition, as was stated by the contractor.

After discovering that the contractor never applied for the permit, on October

14, 2020 we wrote the contractor and gave him 30 days to submit the necessary paperwork to the city. To date, the contactor has not responded.

All we are asking is that contractor do what he said he was going to do and obtain the permit and have the deck pass inspection. We would then be happy to pay him the remaining money (for the higher cost). If we have to obtain the permit ourselves, pass inspection and incur additional costs we would then be requesting reimbursement from the contractor and/or the ROC reimbursement fund.

Attached please find all written communication with the contractor proving his promises and his misrepresentations. There were no verbal discussions about the permit except as noted above, after the deck was complete.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Permits for this project were not obtained as required by the City of Flagstaff Building Department. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local city building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed. Completed project must comply with original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Following the issuance of the written directive, Respondent performed no corrective work. 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)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on March 30, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

A hearing was held on March 30, 2021. Complainant testified on her own behalf and submitted nine exhibits.

Respondent did not appear via video conference and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Philpott testified that Respondent’s license was suspended for non-renewal as of February 1, 2021. Investigator Philpott also noted that invoice 1018 from Respondent did not include Respondent’s ROC license number.

Complainant testified that she absolutely wanted the deck to be constructed pursuant to a permit issued by the City of Flagstaff. Complainant indicated she did not find out that a permit had not been issued until after the deck construction was concluded. Complainant noted that Respondent told her she still owed $2,840.00 towards the end of the project, but she had already paid $500.00 in excess of the agreed upon price.

Richard Stanionis, Building Inspection Manager for the City of Flagstaff, testified that he visited the jobsite and inspected the deck. Mr. Stanionis noted numerous building codes Respondent failed to comply with.

Administrative notice is taken of Respondent’s prior License record on April 19, 2021. Such prior License record reflects that Respondent’s License No. 323357 was first issued on January 28, 2019, and was suspended for non-renewal on February 1, 2021. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s administratively suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

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 performed work on the project without required permits having been issued by the City of Flagstaff. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(2)(b).

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) and (B).

The evidence established that Respondent’s invoice failed to include its ROC license number as required by A.R.S. § 32-1124(B). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the 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. 323357.

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.

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-137160-45720000Done this day, April 19, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000