ALJDEC - Licensing

2023A-07620-CHC-ROC · Registrar of Contractors · 2024-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dennis Linden Lund,

and

Greenwood Village Condo Association

COMPLAINANTS

The Right Choice Construction LLC

License No. ROC 308495,

RESPONDENT

No. 2023A-07620-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 31, 2024

APPEARANCES: Complainant Dennis Linden Lund appeared via Google Meet on his own behalf. Greenwood Village Condo Association was represented by Stephen S. Mufarrah who appeared via Google Meet. Fabian Morales appeared via Google Meet on behalf of Respondent The Right Choice Construction LLC. Registrar of Contractors Investigator Ruben Perez appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Greenwood Village Condo Association Exhibits 1 – 5 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

The Right Choice Construction LLC, (Respondent) is the holder of License No. 308495 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 31, 2021, Greenwood Village Condo Association hired Respondent to remove an existing fence and erect a new block wall measuring 6 feet high. The total contracted price was $43,610.00.

On or about July 7, 2023, the Registrar received a Complaint against Respondent from Complainant, Dennis Linden Lund alleging poor work with respect to project.

The Registrar assigned the present complaint to Investigator Ruben Perez. The jobsite inspection was performed on August 14, 2023.

Investigator Perez then issued a Written Directive on or about August 15, 2023, which provided in pertinent 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 August 31, 2023.

...

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: West 100 or so feet not 6ft high. Contract called for 6 a foot high wall.

Investigator’s Observation: West section of block wall on North property line was observed with only 8 rows of block showing 66” in total height. The rest of the wall was observed with 9 rows of blocks. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Complaint Item 3: Contract called for Brown 8X8X16 Block, but 6X8X16 brown blocks were used.

Investigator’s Observation: Written contract specifies 8x8x16 block to be used in this project. Wall was observed completed with 6x8x16 block. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (2) (a)

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: Contract called for 595 feet and only 462 feet were built .

Investigator’s Observation: This item is a contractual dispute. Therefore, the registrar does not have jurisdiction with this issue.

Governing Rule: NA...

(All errors contained in the original)

Investigator Perez conducted a Compliance Jobsite Investigation on September 5, 2023. In his notes regarding the same, Investigator Perez noted the following in pertinent part:

...

Compliance Jobsite General Notes: A compliance job site inspection was performed with complainant’s representatives, Ira Hearen (tenant), Ron Jones (current HOA Board Member), Margarita Zavala (owner) and Kyle Vanhorn (owner and property manager) present. Respondent’s representatives, Fabian Morales Sr and Fabian Morales Jr were also present. Complainant alleges that respondent failed to perform all repairs as per written directive.

At compliance inspection, respondent Fabian Morales Sr reported he had a verbal agreement with Greenwood Village Homeowners Association (board members at that time) for the changes noted in this complaint. He added he refunded $300.00 to the association and made some additional work to make up for the block size difference. Respondent also said the HOA board at the time agreed to leave the West section of wall at 5’6” as wall would be taller than 6’ if another row of blocks was added. Respondent confirmed there were no change orders for the changes. After this inspection, respondent sent me emails containing emails and text messages with HOA board members at the time of the contract however, the emails and messages do not specifically provide details about changes. These messages are inconclusive as they do not support respondent’s allegation of a verbal change order. Current HOA board member Ron Jones adamantly refuted respondent’s position.

At this inspection, respondent also confirmed the 3-page written contract submitted with this complaint is all the documentation for this job. Respondent reported there were no change orders for any of the changes made with this project.

Compliance Findings: Respondent did not comply with written directive. Findings are noted in italic font below each compliance item.

Complaint Item 1: West 100 or so feet not 6ft high. Contract called for 6 a foot high wall.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

This item was not complied with as per written directive as West section of block wall was observed in same condition as in initial inspection.

Complaint Item 3: Contract called for Brown 8X8X16 Block, but 6X8X16 brown blocks were used.

Investigator’s Observation: Written contract specifies 8x8x16 block to be used in this project. Wall was observed completed with 6x8x16 block. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (2) (a)

This item was not complied with as per written directive as entire block wall was observed in same condition as in initial inspection....

(All errors contained in the original).

On September 7, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about September 20, 2023, Respondent submitted an Answer to the Registrar.

On or about November 2, 2023, a Notice of Hearing was issued setting a hearing on December 20, 2023, at the Office of Administrative Hearings, an independent state agency.

After multiple continuances, the hearing was held on July 31, 2024.

At hearing, Investigator Perez testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Perez testified that he also performed a prehearing inspection on January 31, 2023, and found no changes to the wall.

As to Complaint item 1, Investigator Perez testified that on the west section of the way on the north property line, there were only eight rows of block measuring 66 inches and not 6 feet per the contract. The rest of the wall measured 6 feet.

Investigator Perez testified that as to Complaint item 3, 6x8x16 blocks were used, while the contract called for 8x8x16 blocks.

Dennis Lund testified that when he arrived at the property, he noticed that the wall was in violation of the contract. He also measured the block and determined it was only 6x8x16. Further, he observed that there was about a 100 foot portion where the wall did not measure 6 feet in height.

Next, Margarita Zavala testified that she was a member of the Board when the contract was entered into. Ms. Zavala testified that the Board initially wanted the wall to be 7 feet high, but Mr. Morales informed them that the City required a permit for that height, so the Board settled on a 6 foot high wall. Ms. Zavala also testified that there was never permission from the Board to deviate the size of the block.

Sharon Hutchinson testified she became Board president in 2023 and that she became a member of the Board just after the contract was signed. Ms. Hutchinson testified however that there were no discussions about ever modifying the contract to a shorter height and different size block.

Ms. Hutchison testified further that she was informed that Mr. Morales was going to give the Board a portion of the scrapped fence that he recycled.

Further, Ms. Hutchinson testified that while the Board paid the contract in full, she believed that Respondent owed the Board $1,582.65 for the difference of the costs of the bricks used.

Mr. Morales testified that there were many changes to the project, and that both parties did not enter into any written change orders. Mr. Morales also acknowledged that his contract did not contain the “right to file language” per statue.

Further, Mr. Morales testified that she had many discussions with Rosa Craven who was his point person on the job and she approved the changes. Also, Mr. Morales testified that the $300.00 payment to the Board was for the change in blocks used.

Mr. Morales also testified that the entire wall was 6 feet high, it just did not look that way due to the sloped surface.

In addition, Mr. Morales testified the he spoke with Joe Patron who said there were no issues with the wall.

Administrative notice was taken of Respondent’s prior License record on August 14, 2024. Such prior License record reflected that Respondent’s License No. 308495 was first issued on September 8, 2016, and reflected that there was one open case, namely the present case.

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 deviated from the written contract as the 6x8x16 blocks were used. There was no persuasive evidence provided that there was a valid change order approving the different sized blocks. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(2)(a).

The preponderance of the evidence established that Respondent’s work was not completed in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as there was a 100 foot section of the fence that was below the agreed upon height.

The preponderance of the evidence also demonstrated that Respondent’s contract did not comply with A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158, as it did not contact the “right to file” language as required by statute.

Finally, the preponderance of the evidence established Respondent failed to complete the corrective work following the Directive being issued by taking no action to increase the height of the wall. 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 suspend Respondent’s License No. 308495 for a period of four days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.

It is further recommended that Respondent provide an updated sample contract to the Registrar within thirty days. If Respondent fails to provide the same, it is recommended that Respondent’s license shall be suspended until he provides the sample contract.

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, August 14, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Dennis Linden Lund

[email redacted]

Stephen S. Mufarreh

[email redacted]

The Right Choice Construction LLC

[email redacted]

By: OAH Staff