ALJDEC - Licensing
2023A-14246-CHC-ROC · Registrar of Contractors · 2024-06-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John Mordhorst
COMPLAINANT,
v.
Summit Homes
License No. ROC 082898,
RESPONDENT.
No. 2023A-14246-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 20, 2024
APPEARANCES: Complainant John Mordhorst (Complainant) represented himself. No one appeared on behalf of Respondent Summit Homes (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 19.
_____________________________________________________________________
FINDINGS OF FACT
On April 2, 2024, the Registrar of Contractors, (ROC or Registrar),
issued a Notice of Hearing setting the above-captioned matter for hearing on May 20, 2024, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
Respondent holds license number 082898 issued by the ROC.
The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(a), (A)(3), and (A)(22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
5. On or about September 9, 2020, Complainant and Respondent entered into a new home construction contract for the amount of $610,000.00. Complainant paid Respondent $610, 950.00 for the project.
6. On or about September 2, 2020, Respondent started work on
Complainant’s home.
7. On or about February 7 2022, Respondent stopped construction.
8. On or about December 17, 2023, Complainant filed a Complaint with the ROC alleging poor work on the part of Respondent.
9. On or about January 1, 2024, Complainant filed an addendum to the Complaint.
10. On January 24, 2024, Registrar Investigator Jim Dimond conducted an initial job-site inspection. Investigator Dimond substantiated the Complaint.
11. On or about February 4, 2024, the Registrar issued a Directive to Respondent directing Respondent to correct item 1 of the Complaint, by appropriate means, no later than February 26, 2024. The Directive provided, in relevant part, as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Vinyl Flooring in kitchen area / great room / hallway areas continues to separate at joints.
Investigator’s Observation: Throughout the home, there are gaps at the butt joints of the planks, some are 3/16". Additionally, numerous planks throughout have butt joint staggers that do not meet the manufacturer's requirement of 6" to 8". There are several at the patio slider door that are clustered together including a joint of about 2.5". Another contributory factor may be that some of the baseboard appears to be a 'pinch point' and not allowing the floor to expand and contract. The manufacturer specs also indicate to avoid those pinch points. The respondent is to correct the condition 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.
12. Respondent failed to correct item 1 of the Complaint. 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. Complainant explained that Respondent poorly installed the flooring in his new home. Investigator Dimond testified consistently with his job-site inspection notes. Investigator Dimond explained that Respondnet failed to install the flooring according to the manufacturer’s specifications.
15. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 7, 2024, Respondent’s license was first issued on May 10, 1989. Such prior License record shows that Respondent’s license was voluntarily cancelled effective December 1, 2023. Such prior License record also shows that is one open complaint against Respondent. Respondent’s license has never been disciplined.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction. See Ariz. Rev. Stat. section 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.
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).
4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. Respondent’s voluntary cancellation of its license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).
5. The preponderance of the evidence shows that Respondent did not install flooring in accordance with the manufacturer’s specifications, which is a violation of 32-1154(A)(2)(a).
6. The preponderance of the evidence shows that Respondent did not install flooring in a professional and workmanlike manner, which is a violation of A.A.C. R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
7. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 082898, of Summit Homes shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Summit Homes to pay the sum of $250.00 as a civil penalty.
It is further recommended that if Summit Homes, Inc. fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Summit Homes, Inc.’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Summit Homes, Inc., as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Summit Homes, Inc. 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, June 7, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
John Mordhorst
[email redacted]
Summit Homes
[email redacted]
By: OAH Staff