ALJDEC - Licensing
2023A-01457-CHC-ROC · Registrar of Contractors · 2023-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mike Sprung ,
COMPLAINANT
v.
Suncrest Remodeling and Restoration LLC
License No. ROC 191680,
RESPONDEN
No. 2023A-01457-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 23, 2023, 1:00 P.M.
APPEARANCES: Complainant Mike Sprung appeared on his own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Suncrest Remodeling and Restoration, LLC (Respondent), is the holder of License Number 191680 issued by the Registrar of Contractors (Registrar).
2. On or February 9, 2023, Mike Sprung (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the renovation by Respondent of a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $124,722.23.
3. The Registrar performed an inspection of the project on February 23, 2023. Thereafter, the Registrar issued a Directive, dated March 9, 2023, requiring Respondent to correct the alleged poor work on the project by completing the following items by April 11. 20232, by appropriate means. Further the Directive stated:
Submit an updated version of a contract template to the Registrar that
complies with the provisions of A.R.S. § 32-1158
Compliance Item: 2 - "Cabinet staining on parts of the coffee bar and
kitchen is the wrong shade."
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for:-excessive variation in stain/color
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: 3 - "We were informed after the fact that Suncrest hired
an unlicensed contractor for the kitchen woodwork and the staining is
inconsistent and unacceptable.;"
Investigator’s Observation: Verified. Respondent acknowledged at time of JSI that the individual used for cabinet installation, and other work, did not hold a license with the Registrar.
Governing Rule: Attempting to evade this chapter by: (a) Aiding
or abetting a licensed or unlicensed person.
Compliance Item: 4 - "Numerous drywall cracks and tape separation on
walls and ceiling joints.;"
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -areas of poorly finished drywall
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 - "Bedroom 3 and 4 doors hung incorrectly and not
latching.;"
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -bedroom 4 latch misaligned/door needs adjustment
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: 6 - "Tile grout cracking in same area multiple times in
same area that foundation repair was performed.;"
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -poorly completed grout/excessive tile lippage of tile in dining/kitchen area
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: 8 - "Our contract with Suncrest clearly states that the
French doors in the game room would be sanded and stained."
Investigator’s Observation: Verified. Upon inspection at this JSI I
observed for: -French doors were painted and not stained per 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.
4. As Respondent had not taken any corrective action, the Registrar then issued a Citation to Respondent, dated April 13, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(9)(a) (attempting to evade this chapter by aiding or abetting a licensed or unlicensed person);
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
d. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of the license;
e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated May 12, 2023, that set a hearing for June 23, 2023, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 12, 2023, at its address of record.
6. At the June 23, 2023, hearing, Complainant Mike Strung testified on his own behalf. Arlo Smith, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to dispute disciplinary action being imposed against its license.
8. The Investigator testified on behalf of the Registrar consistently with his job inspection notes and the photographs he took. He testified that Respondent admitted to him that its cabinet subcontractor was not licensed and that it was aware that it had contracted beyond the scope of its CR-61 license due to the value of the contract exceeding $50,000.00. He further testified that the subject contract was lacking the contractor’s license number, the estimated completion date, and the notice to homeowner.
9. Complainant Mike Strung testified that no corrective work was ever undertaken. He stated that Respondent had contacted him about returning to do work but that Complainant required of Respondent that all subcontractors be licensed.
10. Administrative notice is taken of Respondent’s prior license record as of today’s date Such prior license record reflects that Respondent’s License No. 191680 was first issued on March 8, 2004. Such prior license record reflects this case as its only open case but no other disciplined cases or resolved/settled cases in the past.
CONCLUSIONS OF LAW
1. 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.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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3. Violation of any rule adopted by the registrar.
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9. Attempting to evade this chapter by: (a) Aiding or abetting a licensed or unlicensed person...
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12. Failure in any material respect to comply with this chapter.
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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
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22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
7. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and did not comply with Arizona Administrative Code Rule 4-9-108(a). No evidence was presented to dispute existence of any of the Directive items.
9. A.R.S. § 32-1154(A)(9)(a). Complainant has presented sufficient evidence to establish that Respondent attempted to evade this chapter by aiding or abetting a licensed or unlicensed person. The evidence demonstrated that Respondent admitted to knowingly hiring an unlicensed contractor to perform cabinet work.
10. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the written contract and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(12). The evidence presented reflected the written contract was lacking the contractor’s license number, the estimated completion date, and the notice to homeowner. Further, Respondent failed to respond to the Registrar’s request for a new conforming template contract.
11 A.R.S. § 32-1154(A)(16). Complainant has presented sufficient evidence to demonstrate that Respondent knowingly contracted beyond the scope of its license and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(16). The evidence reflected that the contract between the parties was for an amount in excess of $124,000.00, and that Respondent knew that its CR61 license was limited to projects of a value of $50,000.00 or less.
12. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). Respondent was precluded from performing corrective work due to its due to contracting beyond the scope of its license, and there was no evidence presented of other corrective action to remedy the matter.
13. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to established cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(3), § 32-1154(A)(9)(a), § 32-1154(A)(12), § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Suncrest Remodeling and Restoration, LLC’s, License Number 191680 is suspended for seven (7) days.
IT IS FURTHER RECOMMENDED that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s license shall be suspended or continue to be suspended until it does so.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the 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, July 13, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
c/o Arlo Houston, Investigator
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Suncrest Remodeling and Restoration LLC, Respondent
7264 N. Meredith Blvd.
Tucson, AZ 85741
[email redacted]
Mike Sprung, Complainant
11630 Sneller Vista Dr.
Tucson, AZ 85749
[email redacted]
By: OAH Staff