ALJDEC decisions subject to certification as final
2021A-01884-CHC-ROC · Registrar of Contractors · 2022-07-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Paulla Reres
COMPLAINANT,
v.
MGD Building Service LLC
DBA: MGD Builders,
License No. ROC 295207,
RESPONDENT.
No. 2021A-01884-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 16, 2022
APPEARANCES: Complainant Paulla Reres appeared on behalf of herself. Matt Ducharme appeared on behalf of Respondent MGD Building Service, LLC DBA: MGD Builders.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. MGD Building Service LLC DBA: MGD Builders (MGD) holds license number 295207 issued by the Arizona Registrar of Contractors (ROC).
2. MGD’s qualifying party is Mark Ducharme.
3. On or about March 20, 2019, Complainant Paulla Reres entered into a residential remodeling contract with MGD for the amount of $103,572.
4. The March 20, 2019 contract provided a payment schedule as follows:
30% Deposit To Begin Project $31,072
30% Construction Draw When sheetrock is hung $31,072
%30 Construction Draw After cabinet are installed $31,072
10% Final Retention On completion of punch items $10,356
5. In April of 2019, MGD began work.
6. MGD installed cabinetry for the project.
7. In July of 2019, Ms. Reres notified Mr. Ducharme by e-mail, “I really like the doors. They look nice with the kitchen cabinets.”
8. Ms. Reres paid MGD a total of $67,934 under the contract.
9. MGD stopped work in July of 2019 after Ms. Reres informed
Mr. Ducharme that she would not make additional payments under the contract.
10 On August 13, 2019, Ms. Reres sent an e-mail to Mr. Ducharme that provided, in relevant part, as follows:
Sorry, but no one expressed anything about being move in ready but I was disgusted that you hadn't bothered to clean up drywall mudd and debris before cabinets installed and painting done.
12. In April of 2021, Ms. Reres filed a complaint with the ROC alleging poor work on the part of MGD.
13. After the ROC received Ms. Reres’s complaint, ROC Investigator Maerker completed a job-site inspection on June 7, 2021. Investigator Maerker concluded that the job was incomplete.
14. On June 28, 2021, Ms. Reres filed an addendum to the complaint.
15. On August 9, 2021, the ROC issued a Directive to MGD wherein MGD was directed to complete several complaint items according to the contract. The deadline for compliance under the August 9, 2021 Directive was August 27, 2021.
16. On August 10, 2021, Mr. Ducharme notified Investigator Maerker by e-mail that he would not perform any additional work because Ms. Reres had breached the contract after informing him that she would not pay the additional $15,000 to $20,000 that was left owing on the contract.
17. The ROC later determined that MGD would need additional time to perform the Directive. Therefore, the ROC issued an Amended Directive on September 3, 2021. The September 3, 2021 Directive provided, in relevant part, as follows:
Compliance Item: 13 - 1. Closet system-spliced wood and no metal bars to hand clothes.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 14 - 2. Drywall throughout house was not completed in a workmanlike manner
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 15 - 3. Window-install not complete not trimmed out.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 16 - 4. Framing in Master bedroom-crooked wall with hump
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 17 - 5. Painting-doors, interior of home. Some rooms never completed painting, other rooms only one coat, other rooms have only drywall. Painting is poorly don with crooked lines and paint on the door hinges. some areas look like no primer was used and painting not uniform. Overspray on new cabinets.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 18 - 6. Electrical--no outlets in any of the walls, n switches for the electrical outlets, wires hanging out in the laundry room, kitchen wall switch is too high, outside light in back removed and covered by siding, doorbell, other wires handing. Electrical in laundry room for the dryer and washer was not completed.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards. Electrical work must be completed by an ROC licensed electrical contractor
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 19 - 7. Plumbing-shower head height. no release valve in laundry room, water line for fridge too high.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards. An ROC licensed plumbing contractor must be used to complete any plumbing type work
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 20 - 8. Siding-Needs OSB, crooked and popped out boards and broken trim and siding on the back and side. Boards will never be straight without OSB. There is OSB behind the back side and new addition! French door not framed properly with the trim. wide gaps on the side and back of the house. felt not wrapped,. no felt. trim and brick do not align. wide gaps in siding . gaps too wide on the siding by the trim pieces.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 21 - 9. Porch area in rear patio elevation and gable end has drywall. Needs cement board or something waterproof or wood-not drywall
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 22 - 10. Concrete work in the house and outside. Inside by the drain in the MBA. Outside in the front and back
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 23 - 11. Walls in living room where plaster is cracked, the baseboard area that was not repaired and coming apart.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 24 - 12. Interior doors taken off then not reinstalled.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 25 - 13. No hardware on doors-never asked me to pick out. (neither the front door, bedroom doors, sliding doors or the pocket doors).
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 26 - 14. Roof needs to inspected by a licensed roofing company on both the garage (complete roof) and the house where it was patched due to electrical work.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 27 - 15. Fascia trim on the outside
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 28 - 1. The drywall on the ceilings- we forgot to look up. seams are readily seen
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 29 - 2. Outside cracks they started to repair and was paid for that work but did a poor job and incomplete. This was typical of how they did things. His "superintendent" would start things and not finish and did a poor job. Recall the side boards where they started to put concrete then stopped.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 30 - 3. Drain in bathroom-was supposed to be moved. I'll need to double check this.
Investigator’s Observation: This project is not complete all work needs to be completed as per contract. In accordance with local building codes and industry standards. All plumbing type work is to be completed by an ROC licensed plumber
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
18. MGD did not correct the items listed in the Directive by September 20, 2021.
19. On September 28, 2021, the ROC issued a Citation against MGD’s license. Through the Citation, the ROC alleged that MGD violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and 22; Arizona Administrative Code R4-9-108(A).
20. MGD filed a timely answer to the Citation.
21. On November 12, 2021, the ROC issued a Notice of Hearing setting the matter for hearing on December 14, 2021.
22. The Notice of Hearing shows that the complaint and citation allege that MGD violated A.R.S. §§ 32-1154(A)(3) and 22; Arizona Administrative Code R4-9-108(A). The Notice of Hearing further provides that the charges are cause for suspension or revocation of MGD’s license.
23. A hearing was held on June 16, 2022.
24. At hearing, Ms. Reres testified on behalf of herself. Mr. Ducharme testified on behalf of MGD. Investigator Maerker, testified regarding his investigation of the complaint and the issuance of the Directives.
25. At hearing, Mr. Ducharme asserted that Ms. Reres notified him that she would not make additional payments under the contract. Mr. Ducharme asserted that MGD was not obligated to continue performance under the contract because Ms. Reres expressed that she would not issue additional payments as required under the contract.
26. Ms. Reres stated that she never told Mr. Ducharme that she did not have additional funding. Ms. Reres argued that she should not be required to pay for poor work. Ms. Reres disagreed that the job was left unfinished. Ms. Reres contended that the work that MGD performed should have been performed according to minimum workmanship standards.
27. Investigator Maerker explained that he observed that the job-site and the project was not completed. Investigator Maerker explained that he could not determine whether MGD performed deficient work because the project was not completed. See the Hearing Audio Record (0908 2022-06-16).AAC at 21:00 to 22:00 minutes.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S.
§ 32-1154(A).
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The written and testimonial evidence established by a preponderance of the evidence that the project was incomplete. The Administrative Law Judge concludes that the preponderance of the evidence does not show that MGD failed to perform work in a professional and workmanlike manner.
5. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3) and (22), namely, A.A.C. R4-9-108(A).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter 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 is forty days after the date of that certification.
Done this day, July 6, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary