ALJDEC - Licensing
2022A-05142-CHC-ROC · Registrar of Contractors · 2023-10-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nancy Aitken Zadroga
COMPLAINANT,
v.
Mountain Town Homes, LLC
License No. ROC 318456
RESPONDENT.
No. 2022A-05142-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 11, 2023 and October 20, 2023
APPEARANCES: Complainant Nancy Aitken Zadroga represented herself. Chase Halsey, Esq. represented Respondent Mountain Town Homes, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On December 5, 2022, the Registrar of Contractors, (Registrar), issued
a Notice of Hearing setting the above-captioned matter for hearing on January 11, 2023, by the Office of Administrative Hearings in Phoenix, Arizona.
On January 11, 2023, the hearing convened. However, towards the end of
the hearing, the parties requested that the matter be set for a status update to afford Respondent additional time to complete the work.
The matter was reset for a further hearing on October 20, 2023 after
Complainant notified the tribunal that the home was not completed.
The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Respondent Mountain
Town Homes, LLC (Respondent) may have violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108 (A) and (B); Ariz. Rev. Stat. sections 32-1154(A)(22).
6. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
7. On or about October 7, 2020, Respondent agreed to build a new home for Complainant for the amount of $245,000. Complainant paid Respondent $235,000 for the project.
8. Respondent began construction of the home.
9. Respondent stopped work in June of 2022.
10. On or about June 24, 2022, the Registrar received a Complaint from Complainant alleging abandonment on the part of Respondent.
11. On or about October 3, 2023, Registrar Investigator Sheldon White
conducted a job-site inspection.
12. On October 4, 2023, Investigator White issued a Directive.
The Directive provides, in relevant part, 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 10-21-2022.
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 - The build is a year over due, as evidenced by the
contract.
Investigator’s Observation: This complaint item is verified. It is not
uncommon for unforeseen conditions to occur in the construction industry.
The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract.
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: 2 - the house is only partially finished, hence there is no
certificate of occupancy
Investigator’s Observation: This complaint item is verified. It is not
uncommon for unforeseen conditions to occur in the construction industry.
The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional
industry standards. For work to be performed in accordance with
professional industry standards, a contractor shall use such skills,
prudence, and diligence in performing and completing tasks
undertaken that the completed work meets the standards of a
similarly licensed contractor possessing ordinary skill and capacity.
Compliance Item: 3 - the builder is requesting an additional $55,000
(beyond the contract) in order to continue the work
Investigator’s Observation: Respondent shall complete project per
original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.
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: 5 - the $235,500 already paid is ahead of the "draw"
schedule
Investigator’s Observation: Respondent shall complete project per
original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. R4-9-108(b): A contractor shall perform all work in
accordance with any applicable building codes and professional
industry standards. For work to be performed in accordance with
professional industry standards, a contractor shall use such skills,
prudence, and diligence in performing and completing tasks
undertaken that the completed work meets the standards of a
similarly licensed contractor possessing ordinary skill and capacity.
13. Respondent failed to comply with the Directive by the due date.
15. Respondent filed a timely answer to the Citation.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. At the hearing on January 11, 2023, Complainant testified on behalf of herself. Respondent presented the testimony of its qualifying party, Tim Shinkle, and Justin Moore, Respondent’s employee. Registrar Investigator Steve Philpot testified regarding Investigator White’s review of the complaint, his job site inspection, and the issuance of the Directive. Complainant explained that Respondent failed to finish the job. Mr. Shinkle stated that Respondent delayed in completing the job due to the COVID-19 pandemic. Mr. Shinkle also stated that power would have been provided at the home if Complainant would have provided the correct paperwork to “APS”.
Mr. Shinkle also stated that the drawings for the home were incorrect.
18. No one appeared at the hearing on behalf of Respondent at the hearing scheduled for October 3, 2023. At the hearing on October 3, 2023, Complainant explained that the Certificate of Occupancy had been issued. However, Complainant stated that there were 7 items that remained incomplete: the flooring does not meet the front door frame, the front door does not unlock from the inside, the ventilator caps in the bathroom and the roof have caps, there is no handle on the door leading to the crawl space under the home, caulking is needed around the bathroom tub, there are no guy wires in the smokestack, and there are cracks in the foundation. Complainant stated that she noticed the cracks on the same day as the October 3rd hearing. Complainant also testified to the effect that she was not sure whether the issues related to the guy wires and ventilator caps were workmanship issues.
19. Upon review of the evidence, the Administrative Law Judge concludes that while the majority of the home is complete, there are still incomplete items: the flooring does not meet the front door frame, the front door does not unlock from the inside, there is no handle on the door leading to the crawl space under the home, and caulking is needed around the bathroom tub. However the remaining items that Complainant testified to appear to be new workmanship items that were not the basis of the Citation issued in this case. Therefore the Administrative Law Judge does not take jurisdiction over the issues related to the ventilator caps, the guy wires, and the cracks in the foundation.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
The Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A) and (B), and thereby of A.R.S. § 32-1154(A)(3).
5. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, which is a violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. ROC 318456 of Mountain Town Homes, LLC, shall be suspended for one day.
It is further recommended that the Registrar require Respondent to pay the sum of 250.00 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 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, October 23, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Chase E. Halsey, Esq.
[email redacted]
Nancy Aitken Zadroga
21749 McCallie Court
Land O Lakes, FL 34637
[email redacted]
Sheldon White
[email redacted]
By: OAH Staff