ALJDEC - Licensing
2022A-07742-CHC-ROC · Registrar of Contractors · 2023-04-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jinger Cutting,
COMPLAINANT
v.
C-IV Custom Homes & Remodeling LLC
License No. ROC 326813,
RESPONDENT
No. 2022A-07742-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 20, 2023
APPEARANCES: Complainant Jinger Cutting appeared on her own behalf via Google Meet. Registrar of Contractors Investigator Jim Dimond appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
C-IV Custom Homes & Remodeling LLC (Respondent) is the holder of License No. 326813 issued by the Arizona Registrar of Contractors (Registrar). Christopher D. Austin was the Respondent’s Qualifying Party.
On or about May 26, 2022, Jinger Cutting (Complainant) agreed to have Respondent perform an interior remodel of her residence. The total cost was to be $101,706.00. Complainant paid $35,000.00.
On or about September 8, 2022, the Registrar received a Complaint containing items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Jim Dimond. The jobsite inspection was performed on October 21, 2022.
Investigator Dimond then issued a written directive on or about December 13, 2022, 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 December 30, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - This remodel included new flooring, new interior paint, new kitchen, baths, basically an interior gutting and bring in new. The contractor advised us that he moved to Phoenix and that he would come up and stay to complete the job. He then hired others to do the job for him and they did some but not all. He did not pay them and they have returned looking for payment. The work that the contractor did do has to be redone. He cut structural 2X4 in the walls nearly in two, he moved plumbing incorrectly, some doors would not close correctly. We have since hired contractors to finish the job. When I reached out to him, he said I owed him 20% for anything I purchased or hired to finish the job.
Investigator’s Observation: The flooring has been completed.
The new interior paint is not complete and there are numerous locations throughout in which drywall repairs have been made and the paint is the next step. This includes the bathrooms.
In the kitchen, the cabinets are installed however there are no tops on the cabinets or the island. The appliances are not installed and the complainant's are utilizing a folding table and microwave to live.
The master bath is partially complete but the vanity top is not installed and painting needs done.
The complainant's are utilizing the guest bath tub to wash dishes as the kitchen sink is not installed.
The fireplace was completed by the respondent's worker.
The structural issues have been corrected.
The interior doors that have been installed do not appear to be solid core as agreed upon. Text messages support that solid core doors were to be installed.
The respondent has not responded to requests to complete the work.
It should be noted, that the respondent has not responded to the complaint and was not present at the inspection.
While some work has been corrected, the complainant's have had to move forward as they do not have the necessities to sustain life (ie: no oven, no sink, having to dedicate the guest bath to do dishes, etc)
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
. . .
(All errors contained in the original).
On January 12, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).
On or about January 26, 2023, Respondent e-mailed an Answer to the Registrar, stating the following:
I Christopher Austin the owner of C-IV Custom Homes & Remodeling do not agree with the following complaint. 1st there was two contracts drawn up one that she has presented and the one she accepted. I was not to do kitchen cabinets or countertops, she hired the painters so the unfinished paint is on her. The reason that we pulled off of the project is because of failure to make progress payments. Her words not mine “I’ve paid you enough. “ I really don’t think I should be punished for breach of contract. So this is why my license should be at jeopardy.
Thank you.
(All errors contained in the original).
On or about February 10, 2023, a Notice of Hearing was issued setting a hearing on March 20, 2023, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Dimond testified as to the Registrar’s involvement and the above timeline.
Investigator Dimond testified that Respondent failed to appear at the Jobsite Inspection, and failed to otherwise provide support for any of his claims in his Answer.
Further, Investigator Dimond testified that in the master bathroom, the vanity countertop was not installed and that painting had not occurred. Further, additional painting had not been completed throughout the interior, the installed doors were not “solid core” as called for in the contract, there were no cabinet tops or countertops installed, and no appliances including sinks were installed.
In addition, Investigator Dimond testified that once the Directive expired, he contacted Complainant to inquire as to the status of the corrective work. When Complainant informed him that no work had been completed, Investigator Dimond then referred the case to the Registrar’s Legal Department.
Jinger Cutting testified on her own behalf. She testified that communication was difficult with Mr. Austin as when she would hear from him, he would become angry. Ms. Cutting testified that the last communication she received from Mr. Austin was at the end of summer 2022.
Ms. Cutting testified further that there were no other contracts and despite his Answer to the Registrar, Mr. Austin was to complete all of the items in the contract and he failed to do so. Because of this, most items were repaired by different contractors due to Respondent’s refusal to come back to the property.
Finally, Ms. Cutting testified that because of the work and Mr. Austin’s behavior she requested that Respondent’s license be revoked as she believed that Respondent was detrimental to the public.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license. In addition, the Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Finally, on or about February 14, 2023, the tribunal issued an Order containing the Google Meet information and was sent to Respondent at its email address of record.
Administrative notice was taken of Respondent’s prior License record on April 3, 2023. Such prior License record reflected that Respondent’s License No. 326813 was first issued on November 9, 2019, and reflected that there was one open complaint, namely the present complaint.
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 Vazzano 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 preponderance of the evidence established that Respondent abandoned the job in violation of A.R.S. § 32-1154(A)(1), as he left the project unfinished. The tribunal was not persuaded by Respondent’s Answer and he provided no additional evidence supporting his position.
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The vanity countertop was not installed and that painting had not occurred. Further, additional painting had not been completed throughout the interior, the installed doors were not “solid core” as called for in the contract, there were no cabinet tops or countertops installed, and no appliances including sinks were installed. 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).
Finally, the evidence established Respondent failed to complete the corrective work following the Directive being issued. 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).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 326813.
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)(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, April 3, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
C-IV Custom Homes & Remodeling LLC
240 Garden St
Prescott, AZ 86305
[email redacted]
Jinger Cutting
1100 Sunflower Way
Prescott, AZ 86305
[email redacted]
By: OAH Staff