ALJDEC decisions subject to certification as final

2019A-05497-CHC-ROC · Registrar of Contractors · 2020-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christine Wallace,

COMPLAINANT,

PHX Construction LLC,

License No. 319421,

RESPONDENT.

No. 2019A-05497-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 8, 2020

APPEARANCES: Complainant Christine Wallace appeared on behalf of herself. No one appeared on behalf of Respondent PHX Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. On or about April 1, 2019, Complainant Christine Wallace and Respondent PHX Construction, LLC (PHX) entered into a residential construction contract wherein PHX would add a room to Ms. Wallace’s home.

2. On or about April 5, 2019, PHX began construction.

3. On or about July 31, 2019, PHX stopped work.

4. On or about November 4, 2019, Ms. Wallace filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship and abandonment on the part of PHX.

5. On or about December 10, 2019, Registrar Investigator Jack Grimm conducted a job-site inspection. PHX did not attend the job-site inspection.

6. On December 20, 2019, the Registrar issued a Directive to PHX.

The December 20, 2019 Directive provided, 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 January 15, 2020.Investigator of your compliance with this Directive prior to 5:00 p.m. on January 15, 2020.

RESTRICTIONS

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

• If your license is currently suspended for 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:

*Approved building plans or building permit were not obtained for this project. Obtain permit and have local building code jurisdiction perform required inspections and obtain final approval.

Complaint Item 2: Bedroom door poor quality, not able to lock, keep closed and inaccessible by wheelchair.

*Correct bedroom door, must meet egress code compliant for bedroom.

This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout,

or for any reason listed in A.R.S. § 32-1124(F).

Complaint Item 3: Sliding doors and windows substantially lower quality than contracted, do not match existing Simonton doors and windows manufacturers double lifetime warranty not provided. Poor quality windows, doors and screen doors, non-wheel chair accessible entries.

*Install window and doors per contract “All to be Simonton with low-E glass”.

Complaint Item 4: Poor quality interior drywall and paint.

*Correct areas of poor drywall texture and repaint. Correct areas of poor paint coverage.

Complaint Item 6: Damaged existing bedroom walls and ceiling.

*Correct locations of damaged walls and ceiling in the rear bedroom with consistent drywall texture and consistent paint coverage.

Complaint Item 7: Damaged rain gutters, automatic sprinkler system, landscape pavers and blocks.

*Correct any loose or sagging gutters for functionality.

Complaint Item 8: AC install, roof damage, rain water leaked inside room, AC not secured to roof.

*Correct roof AC roof penetrations with proper roof jack flashings and correctly attach AC units per manufacturers recommendations.

Complaint Item 13: Electrical and plumbing safety concerns, uncertain if installed by licensed professionals.

*Obtain building permit and have local building code jurisdiction perform required inspections and obtain final approval.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: Entire house was supposed to be wheelchair accessible; ADA compliant was not considered.

*ADA requirements not identified in building plans or contract.

Complaint Item 5: Poor quality exterior finishes and paint.

*No action required

Complaint Item 9: New concrete walkway cracks.

*No action required as cracks do not exceed allowed 3/32 inch per ROC workmanship standards.

Complaint Item 10: Failed to complete daily jobsite cleanup and haul away debris.

*Action required if construction debris is present at site.

Complaint Item 11: Project manager discourteous, argumentative, disrespectful, belligerent, condescending. Managers never on site or available when needed. Untrustworthy manager’s refusal to make appropriate timely repairs.

* Not a workmanship issue that can be addressed by the ROC.

Complaint Item 12: Failed to provide requested contract change orders or time to complete in writing. Issues persist far beyond 8-10 week contract completion date. Management failed to respond to request for timeline to completion.

*Warning letter issued for missing Elements of a contract. ROC is unable to address timelines.

Complaint Item 14: Poor communication, fails to keep appointments, fails to keep promises,

numerous no-shows.

* Not a workmanship issue that can be addressed by the ROC.

7. PHX failed to correct the items listed in the Directive by the due date.

8. On January 27, 2020, the Registrar issued a Citation against PHX’s license. Through the Citation, the Registrar alleged that PHX may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108); Ariz. Rev. Stat. section 32- 1154(A)(2)(a); Ariz. Rev. Stat. section 32- 1154(A)(22).

9. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of PHX.

10. PHX filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

12. On March 20, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on April 20, 2020, by the OAH.

13. A hearing was held on June 8, 2020.

14. At hearing, Ms. Wallace testified on behalf of herself. Ms. Wallace explained that PHX performed poor work under the contract. Ms. Wallace testified to the effect that the contractor agreed to build the room in compliance with the Americans with Disabilities Act (ADA). Ms. Wallace requested restitution for the damages caused by PHX.

15. Investigator Jack Grimm testified regarding his investigation of the complaint and issuance of the Directive. Investigator Grimm explained that he did not substantiate Ms. Wallace’s claim that the room was not ADA compliant because the signed contract did not contain language regarding the ADA.

16. Respondent did not appear through an authorized member, employee, or attorney at the hearing. Consequently, Respondent presented no evidence to defend its license.

17. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 29, 2020, PHX’s license was first issued on April 9, 2018, and is active. Such prior License record also reflects that there are three open complaints against Respondent’s license and two resolved/settled complaints against Respondent’s license.

18. PHX’s prior disciplinary history and failure to appear at the hearing are considered aggravating factors in the imposition of discipline and penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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 preponderance of the evidence shows that Respondent did not obtain

the required permits for the room addition in violation of Ariz. Rev. Stat. section 32-1154(A)(2)(a).

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 318427 issued to PHX Construction LLC,

DBA: PHX Construction for five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

All other requests are denied.

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.

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-137160-45720000Done this day, June 29, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000