ALJDEC decisions subject to certification as final

2021A-01022-CHC-ROC · Registrar of Contractors · 2021-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Joseph Rellihan,

COMPLAINANT

Elevated Builders LLC

License No. ROC 314805,

RESPONDENT

No. 2021A-01022-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 29, 2021

APPEARANCES: Complainant Brian Joseph Relihan appeared on his own behalf. Sidney Headman, Owner and Qualifying Party, appeared on behalf of Respondent Elevated Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Elevated Builders LLC (Respondent) is the holder of License No. 314805 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 19, 2018, Brian Joseph Rellihan (Complainant) purchased a new home constructed by Respondent.

On or about March 10, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the home.

The Registrar assigned the complaint to Investigator Steven Avila. After a jobsite inspection on April 5, 2021, Investigator Avila 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 May 6, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - This issue was already sent to the ROC and "passed" by the inspector against my suggestion that it is not fixed. I have water coming in my house when it rains. Falling from a header on the first floor, coming down the inside of the walls. This is a new build, I have had water issues all the time.

Investigator’s Observation: At the time of the inspection the area inside the west facing door appears to have water damage. Area in question was addressed in 6/2020 per a directive issued by the Registrar of Contractors.

Complainant stated that the leak has never ceased since initial move in date. Respondent shall determine the cause of the leak and repair as needed. Allegation is verified.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive and prior to the deadline in the directive, Respondent did not conduct a water test or perform any corrective work on the leak. After the deadline in the directive expired, Investigator Avila was notified no corrective work had been performed.

On or about May 8, 2021, Respondent conducted a water test, after which Respondent determined that leaking issue was related to the installation of the sliding glass doors. Respondent took no action to address the leaking issue it identified.

On or about May 13, 2021, Respondent notified Investigator Avila of its findings.

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; and A.R.S. § 32-1154(A)(22).

Investigator Avila testified that upon receipt of the complaint, the Registrar determined the allegations fell within the two-year look back period based on additional work performed by Respondent in 2019 as a result of findings in Case No. 2019-04754. Investigator Avila stated that he did not conduct a water test during the April 5, 2021 jobsite inspection, but observed water staining and baseboard swelling in the home indicative of a leak.

Complainant testified that the leaking in the house had been happening since he purchased the home and Respondent had failed to take any actions to fully correct the issue. Complainant questioned the manner in which the water test was conducted by Respondent as it did not allow enough water to collect on the flat roof to establish if a leak was occurring from that area. Complainant denied that the leaking was entirely related to the sliding glass doors as evidence of leaking was visible above and away from the door.

Sidney Headman, Owner and Qualifying Party, testified that during its May 8, 2021 water test, it determined the source of the leak was the sliding glass door. Mr. Headman opined that the appropriate solution was to construct a cover over the sliding door to prevent rain water from hitting the door. Mr. Headman maintained that, because the leak was the result of a design issue, Respondent was not responsible for the leaking.

Administrative notice is taken of Respondent’s prior License record on December 15, 2021. Such prior License record reflects that Respondent’s License No. 314805 was first issued on July 27, 2017, and was suspended as a result of discipline on October 27, 2021. Such prior License record also reflects that there were no other open complaints, one resolved/settled complaint, and three complaints resulting in discipline 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. 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).

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. 314805 for a period of ten 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, December 15, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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