ALJDEC decisions subject to certification as final

2020A-05944-CHC-ROC · Registrar of Contractors · 2021-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Lynn Butler,

COMPLAINANT

Definite Construction Services LLC

License No. ROC 315591,

RESPONDENT

No. 2020A-05944-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2021

APPEARANCES: Complainant Jennifer Lynn Butler appeared on her own behalf. Respondent Definite Construction Services LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Definite Construction Services LLC (Respondent) is the holder of License No. 315591 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 26, 2018, Jennifer Lynn Butler (Complainant) signed a contract with Respondent for the construction of a new home.

On or about December 23, 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 Bob Mcquien. After a jobsite inspection, Investigator Mcquien 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 February 22, 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 - Front bedroom window has a crack in the interior framework.

Investigator’s Observation: Crack is in actual frame approx. 1 inch in length. Contractor take corrective action.

. . . .

Compliance Item: 2 - One front dining room window has a crack in the interior framework.

Investigator’s Observation: Crack is in actual frame approx. 3\4 inch in length. Contractor take corrective action.

. . . .

Compliance Item: 3 - Rear living room window does not align correctly when closing.

Investigator’s Observation: Part of frame is warped inward prohibiting closure without applying pressure. Contractor take corrective action.

. . . .

Compliance Item: 4 - Front \ Side bedroom window does not align correctly when closing.

Investigator’s Observation: Part of frame is warped inward prohibiting closure without applying pressure. Contractor take corrective action.

. . . .

Compliance Item: 5 - Bathroom [with shower\tub] window does not open or close.

Investigator’s Observation: Window is bound up and will not move easily. Contractor take corrective action.

. . . .

Compliance Item: 6 - Master bathroom window block window [1 out of 2] installed sideways.

Investigator’s Observation: One block window is not aligned with the other. Contractor take corrective action.

. . . .

Compliance Item: 7 - Upper kitchen cabinet has a hole.

Investigator’s Observation: Nail hole in face of cabinet. Contractor take corrective action.

. . . .

Compliance Item: 8 - Back garage door has water intake when raining.

Investigator’s Observation: Gap in door base with damage to frame. Contractor take corrective action.

. . . .

Compliance Item: 9 - Front bedroom is cold enough to need a space heater during winter months, wall cold to touch

Investigator’s Observation: Inadequate heat. Contractor take corrective action.

. . . .

Compliance Item: 10 - 2 out of 3 appliances that were new with home have been broken and electric issue may be detected.

Investigator’s Observation: Complainant replaced appliance and attempted to replace the microwave unit but was unable to due to grout covering brackets. Complainant did engage an electrician to check circuit but no repairs were made. Contractor take corrective action.

Following the issuance of the written directive, Respondent corrected compliance item 7. After the deadline in the directive expired, Investigator Mcquien was notified all of the 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.

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 May 28, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The hearing was held via Google Meet as scheduled at 1:00 p.m. on May 28, 2021. Complainant testified on her own behalf. Respondent did not appear 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 Mcquien testified that he erroneously left off the possible violation of A.R.S. § 32-1154(A)(22) in the pencil cite.

Complainant testified that she moved into the new home on December 28, 2018, and had attempted to get Respondent to address the issues noted in the directive. Complainant denied ever preventing Respondent from accessing the property to complete the corrective work.

Administrative notice is taken of Respondent’s prior License record on June 17, 2021. Such prior License record reflects that Respondent’s License No. 315591 was first issued on August 29, 2017, and is active. 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.

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) and (B).

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. 315591 for a period of five days.

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

001

-137160-45720000Done this day, June 17, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000