ALJDEC decisions subject to certification as final
2020A-05783-CHC-ROC · Registrar of Contractors · 2022-04-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arcadia Townhomes, LLC,
COMPLAINANT
v.
Arizona Construction Plus, LLC,
License No. ROC 323442,
RESPONDENT
No. 2020A-05783-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: March 23, 2022
APPEARANCES: Joshua Greer, Esq. represented Complainant Arcadia Townhomes, LLC. Jami Reinsch, Irene Catsibris Clary and Dustin Creek appeared as witnesses for Complainant Arcadia Townhomes, LLC. Karen A. Palecek, Esq. represented Respondent Arizona Construction Plus, LLC. Martin Basta and Doug Donadio appeared as witnesses for Respondent Arizona Construction Plus, LLC. Arizona Registrar of Contractors Investigator Lisa Melton appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
______________________________________________________________________
FINDINGS OF FACT
Arizona Construction Plus, LLC (“Respondent”) is the holder of License No. 323442, issued by the Arizona Registrar of Contractors (“Registrar”).
On or about December 11, 2020, the Registrar received a Complaint against Respondent from Arcadia Townhomes, LLC (“Complainant”) alleging multiple issues with respect to Respondent’s scope of work for the construction of the final phase of the Rosedale Residences, a gated townhome community consisting of 27 residences.
The Registrar assigned the Complaint to Investigator Lisa Melton.
On January 5, 2021, Complainant submitted an addendum to the Complaint.
After a February 11, 2021 jobsite inspection, Investigator Melton issued a February 17, 2021 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 March 19, 2021.
You are directed to remedy the following violations by the appropriate means:
Compliance Item 14: The contractor has caused damaged to previously installed components of work, windows & doors.
Investigator’s Observation: The work of the Respondent is not complete, however, I was shown damage (bent window frames) that will need to be corrected as completion of work will not impact this condition. Respondent acknowledged this and stated that replacement windows, for windows showing damage, have been ordered. Respondent should correct this condition by appropriate methods. Respondent should also complete the work of the contract. Discussed reasonable time period for completion and long lead item(s). Respondent acknowledged that 30 days would be reasonable for completion with the exception of long lead item(s) which may take longer than 30 days to receive.
Compliance Item 42: The contractor damaged the main electrical panel. The contractor has not provided information from the manufacturer that the panel repairs were done in accordance with factory standards and the warranty is valid.
Investigator’s Observation: Registrar has no authority over warranties, however, Respondent should provide documentation from manufacture that repair meets manufacture installation.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item 1: The contract time was 9/12/2019 through 9/12/2020. The project is overdue.
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 2: The contractors own electrical forces reworked the main electrical supply panel.
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 3: The SRP inspected stated the electrician should be reported to the ROC
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 4: The contractor refuses to perform work before being paid, contrary to contract
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 5: The owner of the conctracting firm has threatened me verbally as well as electronically
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 6: The contractor has refused to provide a schedule per the contract
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 7: The contractor has performed a portion of the roofing from a forklift in an unsafe manner
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 8: The contractor has refused to provide materials to perform work that have been paid for
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 9: The contractor has refused to supply his labor force for contracted work
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 10: The contractor has performed framing, drywall and masonry work not in alignment with the contract documented at balcony areas. The owner had to have its own forces correct the work.
Investigator’s Observation: Work of the Respondent has been modified.
Compliance Item 11: THIS ITEM IS INCLUDED IN PREVIOUS ITEM #10
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 12: The contractor has not had supervision on site per the contract with the current documents.
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 13: The contractor could not perform the painting scope forcing the owner to subcontract with its forces
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 15: The delays by contractor has caused the owner financial damages with buyers
Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.
Compliance Item 16: The contractor has not installed the stone veneer
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 17: The contractor has not finished installing the shingles
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 18: The contractor has not installed the balcony coatings
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 19: The contractor has not installed the balcony railings per the project documents
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 20: The contractor has not installed the masonry columns
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 21: The contractor has not installed the doorbells on any units
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 22: The contractor has not installed spring closers on garage man doors
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 23: The contractor has not installed interior door bumpers
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 24: The contractor has not installed the screens in windows
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 25: The contractor has not installed screens at the French doors
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 26: The contractor has not installed the French door
inserts at balconies
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 27: The contractor has not installed exterior door bumpers at balcony doors
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 28: The contractor has not finished installing interior
hardware
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 29: The contractor has not patched the asphalt by electrical panel.
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 30: The contractor has not cleaned out the catch basins in construction area
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 31: The contractor has not installed the communication box covers in each unit
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 32: The contractor has not completed the landscaping
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete. It should be noted that vegetation is not under the authority of the Registrar.
Compliance Item 33: The contractor has not installed the exterior landscape lighting
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 34: The contractor has not installed polymeric sand at brick paver areas
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 35: The contractor has not installed exterior cleanout
covers for plumbing Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 36: The contractor has not installed the roof drain downspouts
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 37: The garage door opener in unit 20 is not working
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 38: The contractor has not installed the wainscoting in unit 27
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 39: The contractor has not installed the water shut off valve handles
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 40: The contractor has not installed the hose bib handles
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
Compliance Item 41: The contractor has not cleaned or restored the exterior construction area
Investigator’s Observation: At the time of the inspection, the work of the Respondent was not complete.
All errors in original.
After the issuance of the Written Directive, Respondent requested additional time beyond the deadline date specified in the Written Directive, in order to procure materials from the window manufacturer. Complainant refused to extend the deadline set forth in the Written Directive.
On April 15, 2021, Investigator Melton conducted a Compliance Inspection. Investigator Melton’s Compliance Jobsite General Notes state the following in pertinent part:
At the time of this compliance inspection, Respondent stated that the subject window frames (damaged) had been replaced. Complainant did not identify any damage windows that were not replaced. Respondent provided required documentation regarding electrical panel prior to the inspection. The project is not complete. Respondent stated that there are materials on site. Respondent acknowledged that the work had stopped due to a financial disagreement between parties.
Compliance Findings: The work of the Directive is not complete.
All errors in original.
Thereafter, Investigator Melton forwarded the matter to the Registrar’s Legal Department. 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).
Investigator Melton testified that at the April 15, 2021 Compliance Inspection, the windows had been corrected, however, the project remained incomplete. Investigator Melton further testified that it was her understanding that the dispute between the parties had become a financial dispute.
A prehearing inspection was scheduled for March 8, 2022, however, Investigator Melton testified that the prehearing inspection was not conducted because Complainant’s representative would not allow one to take place because roofing work was not completed. Investigator Melton testified that the only items of Complaint, including the addendum items, regarding roof work were item numbers 7 (The contractor has performed a portion of the roofing from a forklift in an unsafe manner) and 36 (The contractor has not installed the roof drain downspouts.) Investigator Melton explained that because item number 7 was not a workmanship issue, and item number 36 had been completed, she did not direct any corrective work regarding the roof.
Investigator Melton testified that Complainant’s representative sent her an email regarding a roofing inspection report. Investigator Melton testified that she explained that new items of Complaint could not be added at that point and advised Complainant’s representative that she could send the roofing report as part of Complainant’s prehearing disclosure. Investigator Melton testified unequivocally that a complaint regarding roof shingles was never part of the instant Complaint and was not added at any time. Investigator Melton explained that a separate complaint regarding roof shingles had been filed by another individual owner, designated as Case Number 2021-04911, and that particular complaint has not yet been forwarded to the Office of Administrative Hearings.
At the outset of the hearing, counsel for Complainant informed the Tribunal that the sole issue for hearing was “the roof issue” which concerned the roof shingles. Counsel for Complainant indicated that the roof shingle issue was not inspected by Investigator Melton. Counsel for Complainant also stated that Complainant acknowledges that there is no violation by Respondent of A.R.S. 32-1154(A)(22).
Counsel for Respondent moved to dismiss the Complaint due to the fact that the roof shingle issue that Complainant wanted to address at hearing was not included in the instant Complaint or Written Directive, and therefore, that issue should not be considered at this hearing.
The undersigned Administrative Law Judge informed the parties that the scope of the instant hearing does not include the roof shingles as that issue was not contained in Complainant’s filed Complaint with the Registrar nor was it contained in any addendum thereto, and therefore, the Administrative Law Judge does not have the jurisdiction to hear or rule on that matter. Adding a new item to an existing Complaint at the time of hearing would constitute a lack of due process as there was no notice to Respondent that the issue would be addressed at hearing, depriving Respondent of an opportunity to prepare to address that issue. Further, that issue was not inspected by the Registrar’s investigator. Consequently, Respondent was not provided an opportunity to correct any alleged deficiency with the roof shingles as the issue was not inspected and therefore, not incorporated into the Written Directive.
Counsel for Complainant repeatedly expressed his disagreement with the Administrative Law Judge’s ruling and continually argued against it.
The Administrative Law Judge further informed the parties that a motion to dismiss could not be granted absent a hearing on the merits due to the fact that a recommended decision issues in this administrative hearing process. The Director of the Registrar can either accept, modify or reject the recommended decision, and therefore, because the Administrative Law Judge Decision is not final until the Registrar acts on it or it becomes certified, the motion to dismiss must be denied.
Counsel for Complainant requested a continuance of the hearing in order to allow him the opportunity to contact the Registrar and have the roof shingle issue added to this Complaint. Counsel for Respondent objected to a continuance. Complainant’s Motion to Continue was denied. The Registrar issued the initial Notice of Hearing on June 7, 2021, setting this matter for hearing on July 13, 2021. This hearing has been continued approximately seven times since then. Complainant has had ample time in which to contact the Registrar to inquire as to how to add an item to the filed Complaint or to file a new Complaint regarding the roof shingles and have that consolidated with this matter. Complainant failed to do so.
Administrative notice is taken of Respondent’s prior License record on March 31, 2022. Such prior License record reflects that Respondent’s License No. 323442 was first issued on February 1, 2019, and has been suspended since December 13, 2021, for lack of a qualifying party. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
In this case, Complainant acknowledged that Respondent did not violate A.R.S. § 32-1154(A)(22) and this alleged violation was not further addressed at the hearing. Therefore, Complainant did not establish 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).
Complainant did not address any alleged deficiencies within the scope of the hearing. Complainant only wanted to address an item of alleged deficiency over which the Tribunal did not have jurisdiction because it was not within the filed Complaint, an addendum thereto, or within the Written Directive. Consequently, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant’s Complaint 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 will be forty (40) days from the date of that certification.
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-137160-45720000Done this day, April 6, 2022.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By: Miranda Alvarez
Legal Secretary