ALJDEC decisions subject to certification as final

2021A-03943-CHC-ROC · Registrar of Contractors · 2022-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Higie,

COMPLAINANT

SkyGreen Construction LLC

License No. ROC 314249,

RESPONDENT

No. 2021A-03943-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 18, 2022

APPEARANCES: Complainant James Higie appeared on his own behalf. Brian Burgmeier, Owner and Qualifying Party, appeared on behalf of Respondent SkyGreen Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

SkyGreen Construction LLC (Respondent) is the holder of License No. 314249 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 7, 2020, James Higie (Complainant) entered into an agreement with Greg Link. The proposal provided by Mr. Link provided it was from “Durango Masonry & Tile DBA Skygreen Construction” and included the ROC License No. 314249. The proposal also included the instruction that “[i]f you have any questions concerning his [sic] quotation, contact Greg Link @480-233-2805.”

On or about August 31, 2020, Complainant was provided with another proposal with additional work to be performed. The proposal was similar in form to the July 7, 2020 proposal.

On or about February 2, 2021, Complainant was provided with another proposal with additional work to be performed. The proposal was similar in form to the July 7, 2020 proposal.

In total, the work Mr. Link proposed to perform totaled $19,700.00. Of that, Complainant paid $14,450.00. The five checks constituting payments for the work performed were all made payable to “Durango Masonry”.

On or about August 13, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project. Complainant asserted that “MOST ALL JOBS WERE STARTED...TO MAKE IT LOOK LIKE WORK WAS BEING DONE.....BUT NOTHING WAS COMPLETED.” (Alterations in original).

The Registrar assigned the complaint to Investigator Daniel Rhodes. After a jobsite inspection, Investigator Rhodes 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 8, 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.

Respondent is required to obtain any, and all building permits required and comply with building code requirements to all complaint items when building permits are required and prior to making corrections listed.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Form and finish 300 Sq. Ft Concrete – Never Completed

Investigator’s Observation: Concrete pad was found to be on north side of the residence extending to the block wall along the property line. The pad visibly appears to be level from side to side and front to back. The pad fails to accommodate drainage and fails to provide the 2% slope as required by building code, specifically 2018 IRC R401.3 (Exception) which has been adopted by the City of Mesa.

. . . .

Compliance Item: 2 - Remove Existing Concrete - Never Completed

Investigator’s Observation: Debris from demolished concrete is still on site.

. . . .

Compliance Item: 3 - New 8' Gate - Never Completed

Investigator’s Observation: Gate not completed, provided or installed.

. . . .

Compliance Item: 4 - Rebuild/Regrout Gate Pillars - Shoddy Workmanship - Will Not Hold New Gate

Investigator’s Observation: North side gate pillar will not support a gate. It can be tilted with mild effort.

. . . .

Compliance Item: 5 - Remove Entire Concrete Driveway and replace with pavers - Never Completed

Investigator’s Observation: Driveway is intact; failed to remove.

. . . .

Compliance Item: 6 - Purchase New Pavers - Never Completed

Investigator’s Observation: No paver purchase, delivery has occurred. Pavers displayed to home owner are walking pavers not suitable for driveway.

. . . .

Compliance Item: 7 - Prep/Install New Pavers - Never Completed

Investigator’s Observation: No paver purchase, delivery has occurred. Pavers displayed to home owner are walking pavers not suitable for driveway.

. . . .

Compliance Item: 8 - Stain New Pavers - Never Completed

Investigator’s Observation: Pavers never provided.

. . . .

Compliance Item: 9 - Seal New Pavers - Never Completed

Investigator’s Observation: Pavers never provided.

. . . .

Compliance Item: 10 - Build Handicap Concrete Ramp @ Front Door - Never Completed

Investigator’s Observation: Handicap ramp not started; no permit obtained for work.

. . . .

Compliance Item: 11 - Build Retaining Wall @ Front Door for Ramp - Never

Completed

Investigator’s Observation: Retaining wall not completed; minimal work performed, a portion of foundation portion poured; another small portion excavated.

. . . .

Compliance Item: 12 - Run Wiring for Low Voltage Lights in Driveway - Never Completed

Investigator’s Observation: No work performed.

. . . .

Compliance Item: 13 - Build New Mailbox - Never Completed

Investigator’s Observation: Mailbox not completed, minimal work performed; blocks partially stacked.

Following the issuance of the written directive, Respondent did not perform any corrective work on the project. After the deadline in the directive expired, Investigator Rhodes 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)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(9)(a)-(d); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Rhodes testified that Durango Masonry & Tile was not licensed; SkyGreen Construction LLC was licensed, but did not have a “doing business as” associated with it. Investigator Rhodes stated that the Registrar had four other complaints against Respondent involving Durango Masonry &Tile. Investigator Rhodes also indicated he had prior interactions with Mr. Link for both civil and criminal unlicensed contracting.

Complainant testified that he had Mr. Link come out to the project on several occasions to do work for him. Complainant indicated that the original project of installing pavers expanded to a variety of other projects. Complainant stated that Mr. Link done a little bit of each project, but had not completed any single project in whole. Complainant admitted he had never met Mr. Burgmeier before the hearing.

Mr. Burgmeier testified that Mr. Link was an employee of Respondent from 2018 to 2020. Mr. Burgmeier stated that Respondent’s license expired in June 2021 for non-renewal. Mr. Burgmeier asserted that he knew of three other complaints against Respondent involving Mr. Link. After Mr. Burgmeier learned of the first complaint in early 2021 and Mr. Link’s use of Respondent’s license number, he told Mr. Link that he could not use the license number for his own purposes. Mr. Burgmeier stated that he was able to resolve the other complaints. Mr. Burgmeier denied knowing of Complainant until he received notice of the complaint from the Registrar.

Administrative notice is taken of Respondent’s prior License record on March 3, 2022. Such prior License record reflects that Respondent’s License No. 314249 was first issued on June 30, 2021, and was suspended for non-renewal on July 1, 2021. Such prior License record also reflects that there were no other open complaints, one prior resolved/settled complaints, and two prior cases 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).

In this case, while Investigator Rhodes found that the work performed did not meet the Registrar’s standards, the credible, probative, and substantial evidence of record established that Respondent was not responsible for such defective work. The evidence established that Complainant contracted with an unlicensed individual, Mr. Link, who was using Respondent’s license number without Respondent’s knowledge or permission. The name on the proposal was “Durango Masonry & Tile DBA Skygreen Construction,” while Respondent’s name is “SkyGreen Construction LLC” with no doing business as associated with it. Complainant acknowledged that he had never met Mr. Burgmeier prior to the complaint process with the Registrar. Most probative was the fact that all the checks for the work performed were made payable to “Durango Masonry.”

Therefore, Complainant failed to establish 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, and 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).

Furthermore, no evidence was presented that Respondent knowingly allowed Mr. Link to use its license in furtherance of its unlicensed activity. Therefore, Complainant failed to establish that Respondent aided and abetted unlicensed activity in violation of A.R.S. § 32-1154(A)(9)(a)-(d).

Because Respondent did not have any part in the contract between Complainant and “Durango Masonry” or Mr. Link, Respondent cannot be held responsible for the failure of the written contract to include the provisions required by statute. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

RECOMMENDED ORDER

It is recommended that the Registrar dismiss Complaint Number 2021-03943 against Respondent.

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 forty (40) days from the date of that certification.

-54864001

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-137160-45720000Done this day, March 4, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000