ALJDEC decisions subject to certification as final

2020A-04414-CHC-ROC · Registrar of Contractors · 2021-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Duncan,

COMPLAINANT

Lablonde Development Corporation

License No. ROC 080218,

RESPONDENT

No. 2020A-04414-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 15, 2021, and April 27, 2021, with the record held open until April 30, 2021

APPEARANCES: Complainant Jennifer Duncan appeared and was represented by Stephanie M. Wilson. Respondent Lablonde Development Corporation was represented by Hank E. Pearson.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Lablonde Development Corporation (Respondent) is the holder of License No. 080218 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 16, 2018, Jennifer Duncan (Complainant) signed a contract with Respondent for the construction of a new home for a total contract price of $1,321,000.00.

On or about September 14, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerberg.

On or about October 20, 2020, after a jobsite inspection, Investigator Fagerberg issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 Thursday 11-19-2020.

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:

Compliant Item 1: Roof: Lablonde has departed from and disregarded plans and specifications in a material respect that is prejudicial without the consent of the owner.

There is a large section of flat roofing on the east side of the house that is not correct per the plans, is unfinished and has holes in the coating. This is a significant deviation from the roofing plans, which the owners did not and would not consent to. This is supposed to be a pitched, tiled section of roofing and does not conform to the plans. The framing and roofing subcontractors were unlicensed.

Investigator’s Observation: The respondent acknowledged that the flat roof area is not per the stamped and approved plans and will correct the issue.

Governing Rule: ARS §32-1154 (A) (2) & (3)

[Compliant Items 2, 3, 4, 5, 6a, 6b, 6c, 6d, 7, 8a, 8b, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18a, 18b, 18c, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36, and 39]

Compliant Item 40: Gutters or other rain runoff issued need to be installed or addressed in areas surrounding east side HVAC units and casita entrance

Investigator’s Observation: The respondent acknowledged that the rain gutters have not been installed at the east side HVAC units and Casita entrance. The respondent is to complete the project per contract and approved plans.

Governing Rule: ARS §32-1154 (A) (3)

[Compliant Items 41 and 47]

Following the issuance of the written directive, Respondent performed corrective work on the project. After the deadline in the directive expired, Investigator Fagerberg was notified some of the corrective work had been performed.

On or about November 25, 2020, Investigator Fagerberg conducted a compliance jobsite inspection. At that time, Investigator Fagerberg concluded that Complaint Items 2, 3, 4, 6d, 7, 10, 14, 16, 17, 18a, 18b, 18c, 19, 22, 24, 25, 29, and 35 had not been corrected to be in compliance with the Registrar’s workmanship standards. Investigator Fagerberg noted that as to Complaint Item 1, “Both parties now agree that the roof is built per the approved plans and have elected to have the flat portion of the roof modified to incorporate a pitched and tiled roof in the area in question.” Investigator Fagerberg noted that as to Complaint Item 40, “The respondent is in compliance with the directive. The rain gutters are not on the plans or part of the contract. Both parties are working together to complete this item.”

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(B); and A.R.S. § 32-1154(A)(22).

On or about March 12, 2021, Investigator Fagerberg conducted a prehearing jobsite inspection. At that time, Investigator Fagerberg noted that most of the items observed as incomplete during the compliance jobsite inspection were still incomplete and some items that were previously in compliance were no longer in compliance.

Investigator Fagerberg testified that Complaint Items 12, 15, 19, 20, 28, and 35 were in compliance as of the time of the prehearing inspection. Investigator Fagerberg also noted that during the prehearing inspection, he observed the west garage mandoor did not have a landing (Complaint Item 8b), there was no valve to control the gas line flow (Complaint Item 13), and there was damage to the outlet covers that were previously in compliance (Complaint Item 21).

At the time of the further hearing in this matter, Respondent acknowledged that it failed to meet minimum workmanship standards and failed to timely correct those issues with respect to Complainant Items 2, 3, 4, 5, 6d, 7, 10, 14, 16, 17, 18a, 18b, 18c, 19, 22, 24, 25, 29, and 35. The parties agreed the only issues remaining to be were Complaint Items 1 and 40.

Complainant testified that during the compliance inspection, Respondent admitted that the roof was not supposed to be flat at any point. Complainant stated that Respondent indicated it would address the issue and would ensure no flat areas remained on the roof. Complainant also testified that the HVAC units were supposed to be placed in a recessed, tiled area that had a roof covering, but because the area was too small to ensure proper air circulation, the units were moved to a different area. The new placement was under the roofline and when it rained, because there were no gutters, the rain water landed directly on the units. Complainant stated that she never agreed with Respondent that the roof was built per the approved plans, but that at the time of the inspection, she was not concerned with the approved plans, just that Respondent promised to fix the roof. Complainant admitted that the flat areas of the roof were not visible from the ground.

Administrative notice is taken of Respondent’s prior License record on May 19, 2021. Such prior License record reflects that Respondent’s License No. 080218 was first issued on September 28, 2021, and is active. Such prior License record also reflects that there were three open complaints and one prior resolved/settled complaint 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards as to those items that were stipulated to by Respondent. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B).

Complainant failed to establish that Respondent’s work was not in conformity with the Registrar’s standards as to complaint items 1 and 40.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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 shall suspend Respondent’s License No. 080218 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 license, 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, May 19, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000