ALJDEC decisions subject to certification as final

2016A-4616-CHC-ROC · Registrar of Contractors · 2017-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Ramon Becerra,

COMPLAINANT,

v.

SNT Construction, LLC ,

License No: 292025

RESPONDENT.

No. 2016A-4616-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 17, 2017

APPEARANCES: Complainant Richard Ramon Becerra appeared on his own behalf. Shane Charles, Owner and Qualifying Party, and Tamara Charles, Owner, appeared on behalf of Respondent SNT Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Respondent SNT Construction, LLC (Respondent) is the holder of License No. 292025 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 25, 2016, Richard Ramon Becerra (Complainant) entered into a contract with Respondent to build a structure over Complainant’s patio. The contract totaled $2,200.00. The contract did not include the estimated date of completion or an advisement that Complainant had the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154.

After the project was complete, Complainant noted several issues and filed a complaint with the Registrar.

On or about November 18, 2016, the Registrar received a Complaint against Respondent from Complainant alleging there were numerous poor workmanship issues on the jobsite.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow issued a written directive to Respondent that provided as follows:

Dear Respondent:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). 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. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 3, 2017.

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

Permit needs to be obtained for entire project and approved inspection results sent to ROC construction investigator. Items of poor workmanship may be re-evaluated after code compliance has been verified.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive and before the deadline at 5:00 p.m. on January 3, 2017, Respondent did not contact Complainant regarding the corrective work. At 8:09 p.m. on January 3, 2017, Respondent sent an email to Complainant offering to resolve the matter by supplying the material, obtaining and paying for the building permit, and paying Complainant $200.00 to hire another contractor.

On December 15, 2016, the Registrar issued three warning letters to Respondent advising Respondent that it appeared to have violated A.R.S. § 32-1154(A)(2), the International Residential Code, the International Building Code, A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1158(B).

On January 6, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

At the hearing, Investigator Johndrow testified that, in his opinion, the project in question required a permit. Investigator Johndrow stated that he did not address any workmanship questions at the time of the jobsite inspection. Investigator Johndrow indicated that after Respondent obtained a permit and passed the permit inspection, he would then perform an inspection to address the alleged workmanship issues. Investigator Johndrow stated that Respondent’s R-62 license would allow it to build a patio cover, but would not allow it to install the roofing on top of the patio cover.

Complainant testified that Respondent never indicated that a permit would be required or he would have obtained a permit prior to the work being performed. Complainant indicated that following the issuance of the written directive, he did not hear from Respondent until after 8:00 p.m. on January 3, 2017.

Shane Charles, Respondent’s Owner and Qualifying Party, testified that he inquired about a building permit, but he was informed the project did not require a permit. Mr. Charles stated that he was told that because the cost of the structure was less than $5,000.00, was not enclosed, and had no doors or windows, it did not need a permit. Mr. Charles did not provide any documentation from the city that a building permit was not required to the Registrar in response to the written directive or to the tribunal during the hearing. Mr. Charles indicated that he had changed his form contract to comply with the Registrar’s notice. Mr. Charles stated that he had received conflicting information from the Registrar as to the scope of Respondent’s license.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on April 6, 2017. Such prior License record reflects that Respondent’s License 292025 was first issued on May 11, 2014, and was current. The prior license record also indicates that there are two open complaints against Respondent’s license.

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 Vazanno 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 weight of the evidence presented established that a permit was needed on the project and Respondent did not obtain a permit. As such, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2).

The evidence established that Respondent did not obtain a permit and pass the building inspection after the issuance of the written directive. 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).

The weight of the evidence presented did not establish that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Johndrow stated that he would not inspect the project for workmanship issues until the permitting issue had been resolved. Therefore, Complainant did not establish that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that the contract at issue did not include an estimated date the project would be compete or an advisement that Complainant had the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154. Therefore, Complainant established that Respondent’s contract did not have all the required elements of a contract in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B).

The evidence established that Respondent installed a roof on the patio cover outside the scope of its R-62 license. Therefore, Complainant’s established that Respondent contracted outside the scope of its license in violation of A.R.S. § 32-1154(A)(16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for the period of three days Respondent’s License No. 292025.

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 40 days from the date of that certification.

Done this day, April 7, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors