ALJDEC decisions subject to certification as final
2021A-00135-CHC-ROC · Registrar of Contractors · 2021-08-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lynda Ellen Kelly,
COMPLAINANT
v.
Royalty Homes LLC
License No. ROC 293335,
RESPONDENT
No. 2021A-00135-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 11, 2021
APPEARANCES: Complainant Lynda Ellen Kelly appeared on her own behalf. Jason Cyrus, Owner and Qualifying Party, appeared on behalf of Respondent Royalty Homes LLC, which was represented by T’shura-Ann Elias.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Royalty Homes LLC (Respondent) is the holder of License No. 293335 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 13, 2018, Lynda Ellen Kelly (Complainant) signed a contract with Respondent for the construction of a new home with a total contract price of $377,469.00, which Complainant paid in full.
Complainant moved into the home on or about January 10, 2020.
On or about January 11, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Robert Mcquien. After a jobsite inspection on February 4, 2021, 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 March 11th, 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 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:
Compliance Item: 1 - Sliding door in bedroom #1, doesn’t slide or lock properly.
Investigator’s Observation: Screen door locking mechanism missing. Contractor Take Corrective Action.
. . . .
Compliance Item: 2 - Sliding door in family room doesn’t slide or lock properly.
Investigator’s Observation: Tile appears to squeeze in bottom track of Sliding door prohibiting smooth function. Screen door locking mechanism missing. Contractor Take Corrective Action.
. . . .
Compliance Item: 3 - Sliding door in master bedroom doesn’t slide or lock properly.
Investigator’s Observation: Screen door locking mechanism missing. Contractor Take Corrective Action.
. . . .
Compliance Item: 4 - Window in bedroom #2 doesn’t slide properly.
Investigator’s Observation: Window will not open or close smoothly. Contractor Take Corrective Action.
. . . .
Compliance Item: 5 - Window in office doesn’t slide properly.
Investigator’s Observation: Window will not open without excessive force. Contractor Take Corrective Action.
. . . .
Compliance Item: 6 - The two entry doors in garage do not seal, entry door into garage screws backing out of frame.
Investigator’s Observation: Door frame split to garage from inside patio. Garage door to outside side of house, Door frame exterior hinge side built up with a shim on the upper and lower ends. Contractor Take Corrective Action.
. . . .
Compliance Item: 7 - Paint/ stucco above entry door and to side of garage cracking / falling off
Investigator’s Observation: Stucco has come off above doorway and mesh screen visible on corner next to door. Contractor Take Corrective Action.
. . . .
Compliance Item: 8 - Back patio, paint/stucco cracking from water damage from March storm.
Investigator’s Observation: Cracks along lower edge of patio and clear film slopped over edge of roofline. Contractor Take Corrective Action.
. . . .
Compliance Item: 9 - Fireplace on back patio sealed shut.
Investigator’s Observation: Fireplace is sealed shut and is inoperable. Contractor Take Corrective Action.
. . . .
Compliance Item: 10 - Master bath, baseboard damaged from toilet leakage.
Investigator’s Observation: Bathroom baseboard has obvious water damage. Contractor Take Corrective Action.
. . . .
Compliance Item: 11 - Paint on glass office door.
Investigator’s Observation: Glass has film upon it after painting. Contractor Take Corrective Action.
. . . .
Compliance Item: 12 - Water pressure drop when two items are on.
Investigator’s Observation: Verify water pressure. Contractor Take Corrective Action
After the deadline in the written directive, Investigator Mcquien received an addendum complaint from Complainant. Investigator Mcquien scheduled a compliance jobsite inspection to be held in conjunction with the jobsite inspection on the new complaint items on April 13, 2021.
On or about April 13, 2021, Investigator Mcquien issued an amended 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 May 10th 2021.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 6 - The two entry doors in garage do not seal, entry door into garage screws backing out of frame.
Investigator’s Observation: Door frame split to garage from inside patio. Garage door to outside side of house, Door frame exterior hinge side built up with a shim on the upper and lower ends. Contractor Take Corrective Action.
. . . .
Compliance Item: 7 - Paint/ stucco above entry door and to side of garage cracking / falling off
Investigator’s Observation: Stucco has come off above doorway and mesh screen visible on corner next to door. Contractor Take Corrective Action.
. . . .
Compliance Item: 8 - Back patio, paint/stucco cracking from water damage from March storm.
Investigator’s Observation: Cracks along lower edge of patio and clear film slopped over edge of roofline. Contractor Take Corrective Action.
. . . .
Compliance Item: 9 - Fireplace on back patio sealed shut.
Investigator’s Observation: Stucco around Fireplace is damaged.
Contractor Take Corrective Action.
. . . .
Added Compliance Item: 13 - Seam Line Cracks in Dining Nook and RV
Garage.
Investigator’s Observation: Visible Seam Line Cracks in both Dining Nook and RV Garage. Contractor Take Corrective Action.
Investigator Mcquien noted that Compliance items 1, 2, 3, 4, 5, 10, 11, and 12 listed in the original written directive had been corrected prior to the compliance jobsite inspection.
On or about May 12, 2021, Investigator Mcquien forwarded the matter to legal for the issuance of a citation because Respondent had failed to correct all the items included in the amended written directive by the May 10, 2021 deadline.
On or about May 14, 2021, 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 Mcquien testified that as of the date of the hearing, the remaining items to be addressed were the door hinges and cracking in the drywall. Investigator Mcquien also noted that some of the corrective work resulted in overspray in the garage. Investigator Mcquien indicated that he believed three extensions had been given in this matter, but did not provide the final deadline resulting from the extensions.
Complainant testified that she still had issues with the stucco and the doors in the home. Complainant stated that stucco was falling off most areas of the home. Complainant asserted that Respondent did the stucco work in house when the house was built, which was the cause of the poor quality. Complainant acknowledged she entered into a possible settlement agreement with Respondent that allowed Respondent 45 days from June 10, 2021, or July 25, 2021, to complete the items in the written directive. Complainant admitted that the home was not available to Respondent on July 22, 2021, and July 23, 2021, or after July 26, 2021.
Mr. Cyrus testified that, because of the shortage of licensed contractors in the area to complete the corrective work, it was not possible for Respondent to comply with the written directly prior to the expiration of the deadline. Mr. Cyrus denied that Respondent refused to correct the issues identified by Investigator Mcquien, but that it was an impossibility to do so.
Administrative notice is taken of Respondent’s prior License record on August 26, 2021. Such prior License record reflects that Respondent’s License No. 293335 was first issued on September 23, 2014, and is active. Such prior License record also reflects that there were two open complaints and two prior resolved/settled 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).
The evidence established that Respondent did not complete the corrective work following the amended directive being issued and prior to the deadline set forth therein. 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).
Respondent’s counsel argued that, because of the settlement agreement, Respondent had until the 45 day agreed upon timeframe expired to comply with the written directive as that was an extension of the deadline. Counsel also implied that because Complainant denied Respondent access to the property on those select days in July 2021, Respondent had a legal justification for failing to comply with the written directive.
Respondent’s argument fails to take into account that Investigator Mcquien referred the matter to legal for issuance of a citation on May 12, 2021. One would presume that had the deadline to comply with the written directive been extended by the Registrar, Investigator Mcquien would not have referred the matter for further action until the deadline from the Registrar had expired. The parties were free to enter into a settlement agreement in an effort to resolve the matter prior to the hearing, but that did not obligate the Registrar to extend the deadline.
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. 293335 for a period of three 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.
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-137160-45720000Done this day, August 30, 2021.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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