ALJDEC decisions subject to certification as final

2019A-03929-CHC-ROC · Registrar of Contractors · 2020-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Madison Rhodes,

COMPLAINANT,

Casa Maravilla Custom Builders LLC,

ROC License: ROC 267045,

RESPONDENT.

No. 2019A-03929-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 30, 2020 and June 24, 2020

APPEARANCES: Complainant Madison Rhodes appeared on behalf of herself. Matthew Pierce, Esq. appeared no behalf of Respondent Casa Maravilla Custom Builders, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

On December 27, 2019, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-captioned matter for hearing on January 30, 2020, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Casa Maravilla Custom Builders, LLC holds license number 267045 issued by the Registrar.

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

Through the Citation, the Registrar alleges that Respondent 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, the Registrar may suspend or revoke Respondent’s license.

On or about May 15, 2019, Complainant Madison Rhodes and Respondent entered into a residential remodeling contract.

On or about May 15, 2019, Respondent began work under the contract.

Complainant requested that Respondent use treated wood in the construction project. On or about June 7, 2019, Respondent stopped work.

On or about August 5, 2019, the Registrar received a complaint from

Complainant alleging poor workmanship and abandonment on the part of Respondent.

On or about November 20, 2019, Registrar Investigator Dennis Bierma conducted a job-site inspection.

On or about October 23, 2019, Investigator Bierma issued to Respondent a Directive. The October 23, 2019 Directive provides, in relevant part, as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 15, 2019.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of you license.

If your license is currently suspended for prior discipline or 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:

Complaint Item 1: “Contractor poured concrete over lumber shoring wall & this caused instability in cement.”

Investigator’s Observation: Verified. Upon investigation of this item I did not verify the lumber itself at time of inspection, I did visually see the area of complaint. However; after inspection the Complainant did dig up the concrete to provide evidence in photo of the lumber still being present in the concrete floor.

Based on that evidence, respondent shall correct this item by appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 5: Page 2. “Vaulted ceiling calcs. Provided by contractor’s engineer are wrong and weren’t submitted to city.”

“Vaulted ceiling not built to specs. Provided by contractor’s engineer.”

“Vaulted ceiling specs. Do not account for tile roof.”

“Rafters not supported w/ proper hardware needed.”

“Rafters not parallel or sistiered w/ roof supports.”

“Missing/improper hardware used at central GLB.”

Investigator’s Observation: Verified. Upon investigation of this item, this has not been completed to be approved by the City of Scottsdale. Any necessary repairs should be corrected to comply with the local city codes. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 7: Page 2. “Homeowner’s engineer calls for needed changes:

A. Follow new specs dated 7/31/19 by engineer.

B. Attach correct hardware to central GLB, on the east & west sides of beam.

C. Attach new simp. A34 & simp SDWC15450 brace & screws at each brace.

D. Install new simp LSU26 sloped hanger prior to sistering.

E. Install simp H2.5 tie at each brace and a 2x4 diagonal brace from ridge board to top of beam at 48” O.C.

F. Fasten rafter plies together w/2 rows of 10d nails @ 12” O.C. to 2x8 rafters flush w/ ceiling joists.

G. Attach simp H2.5A tie at each rafter & top plate w/ j-bolt @ 48” O.C. per plans.

Respondent shall complete project per original contract agreement, properly executed change orders,

verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 8: Page 3. “Contractor neglected to install proper hardware per plans.”

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 9: Page 3. “Contractor used treated wood for structural needs instead of DFL called out in plan.”

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 25: Email addendum item. “There is an area of concrete that was NOT poured that is close to the area where they left a board in the cement at my second entry. There are boards sticking out of it, and a void where concrete should be poured in between the boards.”

Investigator’s Observation: Verified. Upon investigation of this item it was observed that in between the studs had not been completed as part of the finished floor. Concrete floor should be appropriately finished.

Respondent shall correct by appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Contractor removed a portion of shored

wall which left square-shaped holes in the concrete floor.”

Investigator’s Observation: This item will be addressed as part of complaint item #1.

Governing Rule: N/A

Complaint Item 3: “The flooring was repaired by a 2nd contractor w/ self-leveling concrete, but a piece of lumber remains bolted to a sub-concrete floor – which is causing uneven floor surfaced and a crack that runs diagonal from east to west, and a crack that runs horizontal from north to south at the central connection to this sub-terrain piece of bolted lumber. This makes the foundation unstable.”

Investigator’s Observation: This item will be addressed as part of complaint item #1.

Governing Rule: N/A

Complaint Item 4: “We would like the cost for repairs done thus far and the cost to remove the wood & re-pour the floor.”

Investigator’s Observation: This statement represents a money dispute and not an allegation that implicates poor work that I can inspect and report on.

Governing Rule: N/A

Complaint Item 6: Page 2. “Contractor stated his engineer would correct specs.”

“No corrected specs were done by contractor.”

“Homeowner paid their engineer to correct specs.”

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

Governing Rule: N/A

Complaint Item 10: Page 3. “Proper backing not installed @ shower walls.”

Investigator’s Observation: Unverified. The project has not been completed at this time, I cannot verify this item as a workmanship issue at this point.

Governing Rule: N/A

Complaint Item 11: Page 3. “Roof supports installed are not supported by hardware and nails split wood @ support areas.”

Investigator’s Observation: Unverified. The project has not been completed at this time, I cannot verify this item as a workmanship issue at this point. This is an item to be approved by city code upon completion of the project.

Governing Rule: N/A

Complaint Item 12: Page 3. “Roof supports installed are hanging and not flush with wood.”

Governing Rule: N/A

Complaint Item 21: Page 3. “Bracing missing multiple locations.”

Governing Rule: N/A

Complaint Item 22: Page 3. “Pocket door frame not installed.”

Investigator’s Observation: Unverified. The project has not been completed at this time, I cannot verify

this item as a workmanship issue at this point.

Governing Rule: N/A

Complaint Item 23: Page 3. “Many walls out of plumb and ceiling out of level.”

Investigator’s Observation: At time of inspection, no deficiency observed or demonstrated.

Governing Rule: N/A

Complaint Item 24: Page 4. “This contractor has no-showed frequently. Delays & errors have cost owners significantly.”

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

Governing Rule: N/A

Complaint Item 26: Email addendum item. “The central 27 foot beam had some hardware put in August 8th, but the beam is rolling and visibly not plumb just through eye sight. He has also not built the vaulted ceiling to his own person’s specs and is not following the corrections that my structural engineer has told him to correct, so my roof is still at risk of sagging, or failing.”

Governing Rule: N/A

Complaint Item 27: Email addendum item. “The framer foreman came to “correct some issues” on August 8th, but has not completed the corrections. He has not replaced boards that were not plumb, but is instead shaved them down-which I believe to be weakening the structural integrity of the boards that are already a softer wood (pretreated hemp fir).”

Governing Rule: N/A

Complaint Item 28: Email addendum item. “We have receipts that he signed for that show he purchased unauthorized items (hardware that he was responsible and nail gun charges) that we would like to get reimbursed for. He has also wasted lumber that we have purchased that he has signed for that was not used for the purpose on our plans (structural needs) and has wasted lumber with his corrections.”

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

Governing Rule: N/A

Respondent did not comply with the Directive. At hearing, Complainant contended that Respondent performed poor work and abandoned the contract. Complainant asserted that she never denied Mr. Jimenez access to her home.

Registrar Investigator Steve Nelson testified regarding Investigator Bierma’s job-site inspection and the issuance of the Directive.

Jose Jimenez is the qualifying party for Respondent. Mr. Jimenez explained that during the time period for compliance under the Directive, he and his father met with Complainant at her home to repair the items in the Directive. Mr. Jimenez asserted that Complainant did not want to work with Respondent to complete the work. Mr. Jimenez testified to the effect that he could not make the repairs in the manner that Complainant requested. Mr. Jimenez explained that his father and Complainant began arguing and Complainant asked Mr. Jimenez and his father to leave the house.

Mr. Jimenez sent Complainant an email after the DIRECTIVE expired asking when he could repair the concrete work. However, Complainant did not allow Mr. Jimenez to return to her home.

Respondent contended that the Registrar did not allege in its Citation or Notice of Hearing that it violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2). Respondent contended that a finding that Respondent deviated from the plans for the project would violate its due process rights.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-

1154(A).

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).

The Registrar has not alleged that Respondent deviated from the plans

of the project in its Citation and Notice of Hearing. There was insufficient evidence submitted at hearing to establish that Respondent violated A.R.S. § 32-1154(A)(3) regarding Complaint items 5, 7, 8, and 9.

The preponderance of the evidence shows that Respondent did not

perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 , regarding complaint items 1 and 25. Although Complainant hired a second contractor to complete the concrete work, the preponderance of the evidence shows that the second contractor did not modify the poor work performed substantiated by Investigator Bierma: the existence of lumber in the concrete floor.

The preponderance of the evidence does not show that Complainant

denied access to Respondent.

The preponderance of the evidence shows that Respondent attempted to

comply with the Directive, but that all of the work was not completed properly. The preponderance of the evidence shows that Respondent failed to comply with the Directive, which is a 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 shall suspend Casa Maravilla Custom Builders LLC, License No: 267045 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 five days from the date of that certification.

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-137160-45720000Done this day, July 14, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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