ALJDEC decisions subject to certification as final
2022A-04740-CHC-ROC · Registrar of Contractors · 2023-01-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Travis Boyka,
COMPLAINANT,
v.
D R H Tucson Construction Inc.
License No. ROC 124600,
RESPONDENT.
No. 2022A-04740-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 22, 2022 at 1:00 PM.
APPEARANCES: Travis Boyka (“Complainant”) appeared on his own behalf. Rosary Hernandez, Esq. and Katelyn Towe, Esq. appeared on behalf of D R H Tucson Construction Inc. (“Respondent”) with Juan Carlos (“JC”) Villicana as a witness. Mike Springer appeared on behalf of the Arizona Registrar of Contractors (”Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On August 11, 1997, the Registrar issued License No. 124600 B General Residential contracting license to Respondent. The license is currently active and renewed through August 31, 2023. Cade Anderson, Michael Murray, William Tebeaux, Donald Horton, Bill Wheat, Thomas Montano, and David Ault are all listed as Officers on the license. Respondent’s address of record for the license is 6875 N. Oracle Rd., Ste. 125 Tucson, AZ 85704. Respondent has an active $15,000.00 surety bond on the licensed, effective June 01, 2021. There is no prior discipline noted for the license. The license has had 15 prior complaints settled or otherwise resolved against it. Currently, there are 8 open complaints against the license; one of which is presumably related to this matter.
On or about May 10, 2021, Complainant and Respondent entered into a $403,000.00 contract to build Complainant a new residence in Vail, AZ. Complainant paid the contract price in full.
On or about June 10, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 124600 alleging poor workmanship on their project. The Registrar designated it Complaint No. 2022-004740 and assigned to Mike Springer (“Investigator Springer”) for investigation.
On July 19, 2022, Investigator Springer issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on August 12, 2022, at 10:30 a.m.
On August 12, 2022, Investigator Springer inspected the work that had been performed on the project to date. He also took 16 photographs of the project site. When he was finished, Investigator Springer drafted his Inspection Notes. Ultimately, Investigator Springer derived 17 complaint items from Complaint No. 2022-004740, of which, he substantiated 9 complaint items. Specifically, Investigator Springer determined that complaint items 2-3, 6-8, 10 and 13-15 failed to meet the Registrar’s minimum workmanship standards and required Respondent to complete and/or perform corrective work to remediate the identified deficiencies.
On August 12, 2022, Investigator Springer issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s complaint allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on August 30, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A), 32-1154(A)(22) and 32-1154(E).
On September 19, 2022, Investigator Springer issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on September 30, 2022, at 1:30 p.m.
On September 30, 2022, Investigator Springer inspected the corrective work that had been performed on the project and took 3 photographs. When he was finished, Investigator Springer drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Springer determined that Respondent had satisfactorily remediated complaint items 2-3, 7-8, 10 and 13, but that Respondent had not performed corrective work necessary to remediate complaint items 6 and 14-15.
On September 30, 2022, Investigator Springer forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22).
On October 06, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until October 22, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On October 21, 2022, the Registrar received Respondent’s Answer. In pertinent parts, Respondent noted the following:
Respondent denies it violated any rule adopted by the Arizona Registrar of Contractors, and that if failed in any material respect to comply with Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22). [Respondent] promptly implemented repairs identified in the written directive. [Respondent’s] work was proper and completed in accordance with [Registrar] standards.
On October 24, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 22, 2022. Per the November 22, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Hearing Evidence
Complainant testified on his own behalf and called Investigator Springer as a witness. Juan Carolos testified on behalf of Respondent. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 949 S. Grantham Ave. Vail, AZ 85641.
Construction on the residence began on or about July 01, 2021, and concluded on or about April 11, 2022.
Escrow on the home closed April 11, 2022, and Complainant took possession of the property on April 16, 2022.
Shortly after move-in, Complainant made a punch list of items/areas in the home that he was dissatisfied with, and provided it to Respondent. Complainant followed-up with Respondent through May 31, 2022, but did not receive a response.
During the subsequently held compliance jobsite inspection, Investigator Springer noted the following:
Compliance Item: 6 – no weep holes in rear block wall for proper drainage
Compliance Item: 14 – paint on grout in kitchen and master bath
Compliance Item: 15 – screw missing from man garage door
(All errors in original.)
Both Investigator Springer and Complainant testified that the grout color was “off” for unknown reason(s), but conceded that discoloration could be due to being “lived in.”
Although Complainant preferred that corrective work in adherence with the Directive be performed on Fridays, Complainant did not limit access to the project site to one day per week. During this time exterior work was performed on a Thursday, and interior work had been performed on a Tuesday.
On September 30, 2022, Respondent contacted the Registrar with scheduling concerns due to Complainant’s work schedule.
On an unknown date after the expiration of the Directive’s compliance period, Respondent performed corrective work on compliance item 15 to Complainant’s satisfaction.
Investigator Springer testified that he did not know why the Notice of Hearing did not include a charge against Respondent for Ariz. Rev. Stat. § 32-1154(A)(22).
Closing Arguments
In closing, Respondent argued that it had relied on a “collaborative relationship” with Complainant regarding scheduling corrective work, and that it had tried its best to address the Registrar’s Directive.
In closing, Complainant argued that complaint items 6 and 14 remained outstanding, as no settlement had been reached regarding those items. As such, Complainant opined that discipline against Respondent’s license was warranted as his burden of proof had been established.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”
Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the Registrar may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.
The material facts at bar are undisputed.
The evidence of record establishes that Complainant paid Respondent for their contract, and that Respondent did not complete the project in a workmanlike manner. It is also undisputed that Respondent failed to timely comply with the Registrar’s Directive, and failed to ask for an extension of time prior to August 30, 2022.
However, because the Registrar did not include a charge for Ariz. Rev. Stat. § 32-1154(A)(22) in its Notice of Hearing, the Tribunal is not required to make a determination regarding Respondent’s proposed affirmative defenses for failing to correct substantiated complaint items 6 and 14. Notably, a civil penalty may not be assessed against Respondent under Ariz. Rev. Stat. § 32-1154(E). Moreover, for the purposes of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a) the record clearly establishes that Respondent’s initial performance on these items did not satisfy the minimum standards set for workmanship by the Registrar.
Therefore, because Complainant established violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3) by a preponderance of the evidence, and since the outstanding substantiated items are issue are not de minimis, Complainant has also established grounds for the Registrar to take appropriate disciplinary action against Respondent’s contracting license under Ariz. Rev. Stat. § 32-1154(B)(3).
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent D R H Tucson Construction Inc., License No. ROC 124600, be suspended for two (2) days based on its violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3).
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.
Done this day, January 04, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
D R H Tucson Construction Inc., Respondent
6875 N. Oracle Rd., Ste. 125
Tucson, AZ 85704
[email redacted]
Rosary A. Hernandez, Esq.
Katelyn E. Towe, Esq.
Burch & Cracchiolo, P.A., Counsel for Respondent
1850 North Central Ave., Ste. 1700
Phoenix, AZ 85004
[email redacted]
[email redacted]
Travis Boyka, Complainant
949 S. Grantham Ave.
Vail, AZ 85641
[email redacted]
By Miranda Alvarez
Legal Secretary