ALJDEC - Licensing

2023A-13968-CHC-ROC · Registrar of Contractors · 2024-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Murray

COMPLAINANT,

v.

Diggin AZ Excavating & Grading LLC

License No. ROC 336207

RESPONDENT.

No. 2023A-13968-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 13, 2024

APPEARANCES: Douglas J. Suits, Esq. represented Michael Murray (Complainant). Daniel Jones represented Diggin AZ Excavating & Grading LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit 2, 3, 6, 8, and 12.

_____________________________________________________________________

FINDINGS OF FACT

On May 21, 2024, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing July 1, 2024.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

Respondent holds license No. 336207 Specialty Dual CR-2 Excavating Grading and Oil Surfacing issued by Registrar.

Respondent’s qualifying party is Daniel Jones.

Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3),(12) and (A)(22); 32-1158; Ariz. Admin. Code R4-9-108(A).

On or about July 23, 2023, Complainant and Respondent entered into a home addition contract for the amount of $70,641.28. Complainant paid Respondent $55,999.07 for the work. Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), within the time prescribed by Ariz. Rev. Stat. section 32-1162(A). Additionally, Respondent’s contract did include an estimated date of completion.

In July of 2023, Complainant started work.

On or about August 15, 2023, Respondent stopped work.

On or about December 7, 2023, the Registrar received a complaint from Complainant alleging abandonment on the part of Respondent.

The Registrar assigned the complaint to one of its investigators, Jim Dimond (Investigator Dimond.)

On or about January 11, 2023, Investigator Dimond conducted a job-site inspection. Mr. Murray was present for the job-site inspection.

On March 12, 2024, the Registrar issued a Directive to Respondent that provided, 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 Friday, April 12, 2024.

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 reasons , 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 - Diggin AZ has been paid $55,999.07 for a $70,641.28 contract but only approx 30% of the work is done. Investigator’s Observation: At the jobsite, I observed and partially completed masonry structure about 4' higher than the footing. The rebar is installed however the grout has not been placed. here is an interior slab at the bottom of the structure that has not been poured yet. The exterior wall is not poured yet. The deck that is to match the concrete 2nd floor of the existing house is not poured. The respondent maintains that he cannot pour that deck as of yet as the building materials on the house are not yet removed and he cannot match the elevation. The respondent also indicates that the slab in the bottom of the structure needs a pipe installed prior to the slab installation. The complaint initially engaged a general contractor for this project but he has parted ways with them. The complainant is now the owner builder and is considered the general contractor. The GC has an obligation to monitor the day to day operations and ensure that the project stays on track. The respondent is to complete the project in accordance with the contract. The complainant as the GC will need to ensure that work necessary by other trades is completed in a timely manner in order for the respondent to comply with the directive. It should be noted that the Registrar and other parties cannot dictate the means and methods used by the respondent. The respondent is to complete his portion of the project in an appropriate manner

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 - Contract not per AZ state statutes

Investigator’s Observation: The respondent contract does not contain an approximate completion date and does not contain the notice to the public of the right to file an ROC complaint. The respondent is to correct his contracts in an appropriate manner. Warning letter sent.

Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.

Respondent did not make the correct the items listed in the Directive by

the due date. Respondent’s representative reported to Investigator Dimond that Complainant denied him access to comply with the Directive.

Respondent filed at timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

A hearing was held on August 13, 2024.

At hearing, Complainant testified on behalf of himself. Mr. Jones testified

on behalf of Respondent.

Complainant explained that he did not want Respondent to demolish an

existing wall to begin the home addition because Complainant planned to be out of town at different times and did not want his home exposed. Complainant alleged that Respondent agreed to perform the work without the existing demolition of the existing wall. Complainant also obtained a letter form an architect opining that the home addition could be performed without the removal of an existing wall.

19. Mr. Jones explained that Respondent is not licensed to perform demolition work and that he could not perform room addition without demolishing the existing wall. Mr. Jones also explained that Complainant would not allow the wall to be removed. During the time period for compliance under the Directive, Mr. Jones went to Complainant’s home, but Complainant told him to leave. Additionally, there was no evidence presented at hearing that Complainant as the owner builder ensured that work by other trades was performed in a timely manner to allow Respondent to make the required corrections. Mr. Jones also disputed that he agreed to construct the home addition without the removal of the existing wall.

20. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on September 3, 2024, Respondent’s license was first issued on January 8, 2022, and is active. Such prior License record also shows there is only one open complaint against Respondent’s license. Such prior License record further shows that Respondent’s license has never been subject to discipline.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The preponderance of the evidence presented at hearing shows that Complainant required that Respondent perform the home addition without the demolition of the existing wall. However, the contractor must be allowed to perform the corrective work in the manner that the contractor deems appropriate. The preponderance of the evidence shows that Complainant denied Respondent reasonable access to his home to comply with the Directive. Therefore, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of Ariz. Rev. Stat. section 32-1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32-1154(A)(22).

10. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), within the time prescribed by Ariz. Rev. Stat. section 32-1162(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

order

Based on the foregoing, it is ordered that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with all of the requirements of Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to provide proof that it has so revised its form contracts, it is ordered that Respondent’s license be suspended for three days.

In all other respects, the complaint is dismissed.

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, September 3, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Douglas J. Suits, Esq.

[email redacted]

Michael Murray

[email redacted]

Diggin AZ Excavating & Grading LLC

[email redacted]

By: OAH Staff