ALJDEC - Licensing

2023A-10661-CHC-ROC · Registrar of Contractors · 2024-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronald Gene Godlove

COMPLAINANT,

v.

NIU Construction LLC

DBA: Niu Homes

License No. ROC 305749,

RESPONDENT.

No. 2023A-10661-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 8, 2023

APPEARANCES: Complainant Ronald Gene Godlove (Complainant) represented himself. Evan Thompson, Esq. represented Respondent NIU Construction LLC DBA: Niu Homes (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 8. Respondent’s Exhibit R1 through R6.

_____________________________________________________________________

FINDINGS OF FACT

1. On or about April 21, 2021, Complainant and Respondent entered into a contract wherein Respondent agreed to build a new home for Complainant for the amount of $329,500.00.

2. Complainant paid Respondent pursuant to the contract. The contract included a provision required all change orders to be in writing

3. In or around July of 2021, Respondent started construction.

4. On or about May 19, 2022, Respondent stopped work.

5. On or about September 11, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor work and abandonment on the part of Respondent.

6. Complainant listed 23 complaint items in the complaint. The complaint was assigned to Registrar Investigator Michael Springer on September 12, 2023.

7. On or about October 3, 2023, Investigator Springer conducted an initial job-site inspection regarding the complaint.

8. At the October 3, 2023 job-site inspection, Investigator Springer discovered that Respondent performed poor work in connection with complaint items 1, 2, 4, 5, 6, 12, 13, 14, 15, 16, 17, 22, 24, 26, and 27.

9. On October 4, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct complaint items 1, 2, 4, 5, 6, 12, 13, 14, 15, 16, 17, 22, 24, 26, and 27, by appropriate means, no later than 5:00 p.m. on October 20, 2023.

10. On December 4, 2023, Investigator Springer conducted a compliance job-site inspection. Investigator Springer’s notes regarding the compliance job-site inspection provided, in relevant part, as follows:

Compliance Findings: The following items were not completed or Poorly completed

Compliance Item: 2 - Stem walls cracking never level, to the point walls are leaning outward, gaps under sill plate.

Compliance Item: 5 - interior Walls: Per plan, were to be 16" OC. Nui built 24" OC

Compliance Item: 6 - Was to have double top plate has single with 1 1/2" gap above walls, no truss support

Compliance Item: 16 - Breakfast bar built over height, contractor said he would lower. Has not been changed. (Completed but poorly finished at electrical outlets.)

Compliance Item: 24 - Cracking at ceiling front porch.

Compliance Item: 27 - Also Failed to build ponywall on porch per plans. (Wall is built but no stucco)

11. On December 11, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A); Ariz. Rev. Stat. section 32-1154(A)(22).

12. Respondent filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

14. At hearing Complainant testified on behalf of himself and he presented the

testimony of his sons, Clayton Godlove, and Samuel Godlove. Respondent presented

the testimony of its owner Isaac Niu and Kris Kruger, Respondent’s employee.

15. Investigator Springer testified consistently with his initial job-site inspection notes and his compliance job-site inspection notes. Regarding complaint item 2, Investigator Springer acknowledged that Respondent filled in the cracks. However, the cracks were still visible.

18. Complainant and Clayton Godlove both testified to the effect that although Respondent suggested that Complainant remove the pony wall from the plans, Complainant never agreed to remove the pony wall from the plans.

19. Mr. Nui stated that Complainant agreed that he pony wall would not be constructed. Mr. Nui stated that he agreed not to charge Complainant for other items in exchange for failing to complete pony wall.

20. Mr. Niu testified that Respondent passed all inspections with Cochise County. Mr. Nui also stated that the interior walls were built in accordance with the 2012 International Residential Code. Mr. Nui stated that Respondent could not install double plates because his truss manufacturer told him that more space would be needed.

21. Upon consideration of the evidence presented at hearing, the Administrative Law Judge finds that although Respondent’s work passed inspections with Cochise County, Respondent was required to build the home according to the specifications in the plans.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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 a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

6. The preponderance of the evidence shows that Complainant did not agree

to remove the pony wall from the construction plans. Respondent provided insufficient evidence to establish that the installation of double top plates would have resulted in poor workmanship.

7. The preponderance of the evidence shows that Respondent failed to perform work in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

8. The preponderance of the evidence shows that Respondent correctly repaired complaint items 1, 4, 12, 13, 14, 15, 17, 22, and 26.

9. The preponderance of the evidence shows that Respondent failed to

correctly repair complaint items 2, 5, 6, 16, 24, and 27, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 305749 held by NIU Construction LLC

DBA: Niu Homes, for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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 29, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Evan L. Thompson, Esq.

Thompson Krone, Gibson, PLC

[email redacted]

Ronald Gene Godlove

[email redacted]

By: OAH Staff