ALJDEC - Licensing
2024A-00572-CHC-ROC · Registrar of Contractors · 2024-07-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Matthew Artman,
COMPLAINANT,
v.
QBC Homes LLC
License No. ROC 333055,
RESPONDENT.
No. 2024A-00572-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on June 27, 2024.
APPEARANCES:
For Complainant: Matthew Artman.
For Respondent: No appearance.
For the Registrar of Contractors: Investigator Mike Springer.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant submitted Exhibits 1 through 5.
_____________________________________________________________________
FINDINGS OF FACT
QBC Homes LLC (Respondent) is the holder of License No. 333055 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 24, 2022, Matthew Artman (Complainant) purchased a new build home, built by Respondent.
On or about January 16, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent failed to fix an odor in their master bathroom.
The Registrar assigned the complaint to Investigator Mike Springer, who issued a Jobsite Inspection Notice on January 16, 2024, scheduling the inspection for March 21, 2024.
Investigator Springer conducted the jobsite inspection and issued a Written Directive From the Registrar to Respondent on March 21, 2024. The Directive provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - I have a sulfur/sewage odor from my left side master bath room sink.
Investigator’s Observation: Strong smell coming from sink on left side of master bathroom. Complainant had a sewer gas detector which indicated red, high level. Regardless of levels, sewer smell should not be present.
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.
The Written Directive required Respondent to notify Investigator Springer of Respondent’s compliance with the directive prior to 5:00 p.m. on April 8, 2024.
On or around April 8, 2024, Complainant informed Investigator Springer that the work had not been corrected.
On April 11, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(C); and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on April 25, 2024, stating that a subcontractor had been to the property several times but had been unable to identify the problem. They drained and treated the water heater, which would take several weeks to work.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On May 21, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing on June 27, 2024 at 1:00 PM. The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record.
On May 25, 2024, the Office of Administrative Hearings sent the Order of Virtual Hearing to Respondent at its email address of record, which was also used in Respondent’s Answer.
The hearing was held via Google Meet on June 27, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Respondent did not contact the Office of Administrative Hearings between the hearing date and the publication of this Decision.
Investigator Springer testified that the home was a new build, which Respondent built. He testified that the smell was strong and unpleasant but that he did not know what caused it. Complainant used a gas sniffer in the master bathroom; it identified high levels of gas.
Complainant testified that Respondent had no sense of urgency to correct the issue at any time during the process. Prior to the Complaint, Respondent’s subcontractor would come to the house and try to fix it, but the smell would return. After the Directive was issued, Respondent’s subcontractor did not come to the house until April 2, 2024, less than a week before the directive period expired. The subcontractor ordered a part; it did not arrive until the day after the directive period had ended; and they did not install the part until April 22, 2024, two weeks after the directive period ended.
Complainant testified that it did not make sense for the water heater to be the problem when only the master bedroom had the smell problem.
Respondent did not request an extension or communicate with Investigator Springer during the directive period.
Respondent failed to appear at the Hearing.
Administrative notice was taken of Respondent’s prior License record on July 12, 2024. According to that record, Respondent’s License No. 333055 was first issued on April 16, 2021; it had two open complaints and no prior complaints.
CONCLUSIONS OF LAW
Respondent is deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the Order of Virtual Hearing to Respondent at its email address of record.
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent built a new home with an odoriferous master bathroom. However, the Registrar did not identify how R4-9-108(C) applies instead of R4-9-108(A), (B), or another Rule. Stafford appears to have a plumbing code, and the Registrar did not state that Stafford’s adopted code does not contain specific provisions applicable to this aspect of construction work. Therefore, this Tribunal is unable to determine whether Respondent did not perform the work in accordance with professional industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(C).
The evidence established that Respondent did not complete the corrective work within the Directive period. 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 suspend for 2 days Respondent’s License No. 333553.
It is further recommended that the Registrar require Respondent to pay the sum of $200.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 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, July 17, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
[email redacted]
Matthew Artman
[email redacted]
QBC Homes LLC
[email redacted]
Mike Springer
[email redacted]
By: OAH Staff