ALJDEC decisions subject to certification as final

2018A-3554-ROC · Registrar of Contractors · 2019-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2019, with the record held open until February 21, 2019, for the purpose of receiving post hearing briefs. APPEARANCES: Elijah Rosov, Esq. appeared on behalf of Complainant Martha Vega. James Sparks, Esq. appeared on behalf of Respondent Jaime Construction, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On December 10, 2018, the Registrar of Contractors (“ROC” or “Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 30, 2019, by the Office of Administrative Hearings. 2. Respondent Jaime Construction, Inc. (“Jaime”) holds license numbers 172319 and 095143 issued by the ROC. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, ROC alleges that Jaime may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Jaime’s license.[1] 5. Complainant Martha Vega entered into a contract with Jaime wherein Jaime would build a new addition to Ms. Vega’s home. 6. Ms. Vega provided Jaime with the plans and specifications from RD Architectural Consultants (“the architect”). 7. Under the contract, Jaime agreed to install the home addition, including the framing, in accordance with the architect’s plans and specifications. 8. Jaime did not hire the architect. 9. Jaime built a new addition to Ms. Vega’s home. 10. On August 2, 2018, Ms. Vegas filed a complaint with the ROC alleging workmanship and other deficiencies on the part of Jaime. 11. Ms. Vega alleged that Jaime failed to perform work according to the architect’s plans. 12. In response to the complaint, ROC Investigator Steve Lawton conducted a job-site inspection on August 24, 2018. Investigator Lawton found that the roof line and facia were not installed per the architect’s elevation plans. Investigator Lawton did not review the architect’s structural plans and specifications. 13. Mr. Lawton issued to Jaime a Directive dated September 4, 2018. The September 4, 2018 Directive provides, in relevant part, as follows: 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 notify the Registrar's assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 24, 2018.

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

1. Complaint Item 1: Failure to perform work per architects plans.

Investigator’s Observation: It was observed that the roof line and facia elevation were not per elevation plans.

2. Complaint Item 6: Built roof with wrong slope.

Investigator’s Observation: It was observed that the facia board is not installed per elevation plans.

See complaint item 1. 14. On November 5, 2018, Inspector Lawton conducted a compliance inspection. Investigator Lawton concluded that Jaime failed to comply with the Directive. 15. Jaime filed a timely appeal. 16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 17. A hearing was held on January 30, 2019. 18. Investigator Lawton admitted at the hearing that he did not review the architect’s structural design plans. 19. Investigator Lawton opined that Jaime Construction should have noticed that there was a problem with the architect’s plans and specifications when the trusses were placed on the framing. 20. Investigator Lawton also asserted that when the contractor discovers that there is a problem in the design, the contractor should inform the homeowner. 21. Ms. Vega’s position was that it was Jaime’s responsibility to review the plans and measure the existing roof to ensure that the height listed in the architectural plans was indeed the correct height. 22. Ms. Vega also argued that Jaime failed to prove that there were errors in the structural design or any of the other plans prepared by the architect. 23. Mr. Jaime asserted that he built the home addition in accordance with the architect’s structural and foundation plans. Mr. Jaime further explained that a contractor builds a structure based on the structural and foundation designs, not pictures. 24. Jaime argued that it could not be held liable for the defects in the architect’s plans. See Kubby v. Crescent Steel, 105 Ariz. 459, 466 P.2d 753 (1970), 25. Mr. Jaime explained that before the shingles were applied, he informed Ms. Vega that the roof was not continuous due a defect in the architect’s plans. Mr. Jaime explained that he offered possible remedies to Ms. Vega at an additional cost, but Ms. Vega declined. 26. Ms. Vega denied that Jaime informed her that the roofs did not line up due to a defect in the architect’s plans. 27. Administrative notice is taken of Respondent’s prior License records on March 12, 2019. Such prior License record reflects that Jaime’s License No. 172319 was first issued on February 26, 2002, and there is only one open complaint against Jaime’s license. Such prior License record reflects that Jaime’s License No. 095143 was first issued on October 16, 1992. The Registrar has never before taken disciplinary action against Jaime’s License No. 095143. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 2. 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. 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. If a contractor is bound to the homeowner to build according to plans supplied by the owner, the contractor is not liable for consequences of defects in the plans. See Kubby v. Crescent Steel and Chaney Building Company v. City of Tuscon, 148 Ariz. 571, 716 P.2d 28 (1986). 5. In this case, Investigator Lawton substantiated Ms. Vega’s allegation that Jaime did not construct the home addition in accordance with the architect’s plans. Jaime was ordered through the Directive to conform the roof line, facia board, and slope to the architect’s elevation plan. However, there was no evidence presented that Jaime could have conformed the roof and facie to the elevation plan without deviating from the structural plans provided by the architect. 6. Jaime asserted that the roof and facia did not resemble the elevation plan due to a defect in the structural and foundation plans provided by the architect. Jaime cannot be held responsible for a defect in the architect plans and specifications. See Kubby v. Crescent Steel and Chaney v. City of Tucson. 7. The preponderance of the evidence does not show that Jaime failed to build the new addition in accordance with the architect’s structural plans.

8. 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 A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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 is forty days after the date of that certification. Done this day, March 13, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826