ALJDEC decisions subject to certification as final

2021A-02445-CHC-ROC-RHG · Registrar of Contractors · 2022-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Matthew Deleplanque,

COMPLAINANT

Desert Sun Customs & Restoration, LLC,

License Nos. ROC 240872, 333009,

RESPONDENT

No. 2021A-02445-CHC-ROC-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 3, 2022

APPEARANCES: Complainant Matthew Deleplanque appeared on his own behalf. Respondent Desert Sun Customs & Restoration, LLC failed to appear. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Desert Sun Customs & Restoration, LLC (“Respondent”) is the holder of License Nos. 240872 and 333009 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about October 8, 2020, Matthew Deleplanque (“Complainant”) contracted with Respondent for Respondent to perform remodeling work at Complainant’s home, including the installation of a 2.5 ton heat pump system. The contract price was $14,188.93. On October 12, 2020, Complainant paid Respondent in full.

On or about June 1, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator John Smith. During the course of a June 17, 2021 Jobsite Inspection, at which both parties were present, the parties decided to resolve the matter amongst themselves, and Investigator Smith closed the Complaint.

On December 2, 2021, Complainant requested that the Complaint be re-opened, and Investigator Smith did so.

After a December 16, 2021 Jobsite Inspection, at which both parties were present, Investigator Smith issued a Written Directive to Respondent, dated December 16, 2021, 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 January 13, 2022.

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

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Complaint Item 1-2 and 1-3: “Supply and install Goodman 2.5 ton 14 seer heat pump system with new deck and duct return.

2. Thermostat control hasn't been hooked up.

3. Air ducting has not been installed from ac to the home”

Investigator’s Observation: Verified.

Removed from this house was a central furnace from a hallway closet, and an evaporative cooler.

Installed is a packaged heatpump unit placed on the back side of the house.

Exterior duct work has been installed to connect the new equipment to the preexisting supply ducts.

One return air duct has also been added through the back wall of the house.

The exterior duct work is wrapped with roofing material.

The exterior ducting is less than six inches from ground level.

The system does not produce heat with the thermostat in heat mode.

The thermostat is not located in a central area of the house – instead the thermostat is located in a back bedroom.

The sole return air duct is not installed in a central location of the house – instead the sole return air duct is located in the wall of a back bedroom closet.

The return air duct is not complete and has no location for a filter.

The sole return air duct appears to be undersized for the installed 2.5 ton system.

The original ductwork in the ceiling of the original furnace closet has not been patched.

Complaint Item 6: “Neither the electrical permit nor the plumbing permit were obtained by contractor. I was notified that the 200 amp service panel upgrade had been completed and that I needed to obtain the building permit to get electric turned on. The building permit Per21-00519 was issued to me on January 25, 2021 and passed inspection February 10, 2021. The electricity was connected February 17, 2021. To my knowledge a building permit for the plumbing has not been submitted or issued. The water was turned on February 19, 2021.”

Investigator’s Observation: Verified.

This project included modifications to the plumbing inside the walls and below the foundation slab. This project also included removing a central furnace and evaporative cooler, and replacing both with a packaged unit heatpump.

This is all work that requires a permit. This work was performed without a permit being obtained.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Warning Letter: Elements of a Contract.

Investigator’s Observation: The respondent’s contract is missing the following information:

• An estimated date of completion

• The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

• The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the property owner

• A signature of the contractor

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158

Warning Letter: Performing permit required work without a permit being obtained.

Investigator’s Observation: This project included modifications to the plumbing inside the walls and below the foundation slab.

This project also included removing a central furnace and evaporative cooler, and replacing both with a packaged unit heatpump.

This is all work that requires a permit. This work was performed without a permit being obtained.

REQUIRED CORRECTIVE ACTION:

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1-1: “Supply and install Goodman 2.5 ton 14 seer heat pump system with new deck and duct return.

1. Conduit for Ac on west wall exterior, installed too high for future door installation.”

Investigator’s Observation: This allegation is NOT verified.

The complainant stated the conduit is now low enough for a future door to be installed.

Complaint Item 2: “Shower Wall Tile and Installation Stud out wall prep with Den-Shield and Rubberized with wall install.

1. Stud wall built by myself to facilitate washer/dryer utilities ie; hot/cold water and 30 amp electric removed due to toilet plumbing in incorrect place. Was told by Levy, the contractor, utilities could be run underneath bathtub.”

2. Tile incorrectly installed

a. Crooked tile on right side of tub.

b. Tile not to specified height of the ceiling.

c. Window off center due to lack of Den shield on left side of widow frame.

d. Shower tile installed before washer/dryer and inline water heater utilities installed.

e. Shower soap dish not installed.”

Investigator’s Observation: This allegation is NOT verified.

The complainant stated he has decided to accept everything in the bathroom.

There is currently no 30 amp electrical outlet for a dryer; however, this is not able to be verified as the respondent’s responsibility. The scope of work listed in the contract does not include a 30 amp outlet for a dryer, or an exhaust duct for a dryer.

Complaint Item 3: “Builders toilet, sink, vanity, counter top, ceiling ventilation fan, tankless water heater, drywall, and paint have not been installed.”

Investigator’s Observation: This allegation is NOT verified.

The complainant stated that any of these items not currently done, he is doing himself.

Complaint Item 4: “Plumbing

Supply and install Eco smart 1800 tankless water heater. Re route plumbing in bathroom for new fixture locations. Installation of new washer box.

1. Plumbing in bathroom rerouted incorrectly. Toilet drain located too close to north wall to allow for stud wall containing the utilities for washer /dryer hook up and bathtub. Stud wall was removed. Bathtub and tile were installed, utilities to be installed under bathtub incomplete.

2. Electric circuit for tankless water heater not installed prior to tile wall being installed.”

Investigator’s Observation: This allegation is NOT verified.

The complainant stated he has decided to accept everything in the bathroom.

The complainant stated the tankless water heater is installed.

Complaint Item 5: “Desert Suns Customs and Renovations provided in house financing. As soon as the financing was approved, Levy submitted an email invoice on October 12, 2020 for the amount of $14,188.93. The amount was paid in full on the same date as the invoice was received. Levy stated that all the money was needed to buy the materials and so that job could be completed by mid November 2020. Since that time, communication with anyone from Desert Sun Customs and Renovations has been very difficult. Initially, communications were sporadic at best. Currently, at the time of this complaint, there have been no replies to my numerous phone calls and texts. Full log of communications and attempted communications will be provided upon request.”

Investigator’s Observation: This statements do not implicate a workmanship issue to observe and report on.

All errors in original.

Subsequent to the deadline specified in the Written Directive, on January 18, 2022, Investigator Smith contacted Complainant and was informed that Respondent had not performed any work after the issuance of the Written Directive.

Thereafter, Investigator Smith 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)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b), A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The initial hearing of this matter was scheduled to convene on April 1, 2022, at 1:00 p.m. On the date and time set for hearing, Complainant appeared on his own behalf. Levi Conrad appeared on behalf of Respondent. Investigator Smith was present.

The parties participated in a prehearing discussion outside the presence of the Administrative Law Judge. As a result of that discussion, the parties entered into a settlement agreement, however needed additional time to execute the agreement. The hearing was continued and set for a Status Update on May 16, 2022.

Neither party submitted a Status Update by the deadline date. Consequently, on May 17, 2022, staff of the Office of Administrative Hearing emailed the parties requesting a Status Update.

On May 17, 2022, Respondent responded as follows: “Permits were submitted, work was completed at home, units up and running. Just waiting for Matt to finish a couple things so we can call inspection.”

An Order setting the matter for a second Status Update was issued and set for June 20, 2022. The Order setting the second Status Update advised the parties that if a Status Update was not submitted by June 20, 2022, the hearing would be vacated.

Neither Complainant nor Respondent submitted the second Status Update as ordered. Therefore, on June 21, 2022, the hearing in this matter was vacated from the calendar of the Office of Administrative Hearings and remanded to the Registrar for further action.

The Registrar subsequently granted a rehearing and the matter was again forwarded to the Office of Administrative Hearings to conduct the rehearing.

The rehearing was scheduled to convene on August 3, 2022, at 9:00 a.m. On the date and at the time set for hearing, Complainant appeared on his own behalf. Investigator Smith appeared as a witness. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Smith testified consistently with his Jobsite Inspection Notes and Written Directive. Investigator Smith testified that he spoke with the local building official and ascertained that Respondent failed to obtain the required permits. Investigator Smith explained that because Complainant accepted the condition of the bathroom at the Jobsite Inspection, he did not order any corrective work be performed by Respondent with respect to the bathroom.

Investigator Smith testified that he conducted a prehearing inspection on August 1, 2022, and that Respondent did not attend this inspection. Investigator Smith further testified that the scope of Respondent’s work remained incomplete, the HVAC system remained inoperable, Complainant has not had any heating or cooling throughout this Complaint process, and Respondent has made no attempt to correct the deficiencies.

Investigator Smith testified regarding the two Warning Letters that he issued to Respondent for the reasons delineated in the Written Directive.

Complainant agreed with all of Investigator Smith’s testimony and his conclusions regarding Respondent’s work on the project. Complainant emphasized that Respondent was to obtain three permits for the project, including plumbing and electrical, as well as for the HVAC system, and Respondent failed to do so.

Administrative notice is taken of Respondent’s prior License records on August 5, 2022. Such prior License records reflect that Respondent’s License Number 240872 was first issued on April 9, 2008, and is suspended for non-renewal, effective May 2, 2022. Such prior License records also reflect that there is the instant open complaint and one complaint resulting in discipline for License Number 240872. Such prior License records also reflect that Respondent’s License Number 333009 was first issued on April 14, 2021, and is active. There is one resolved/settled complaint for License Number 333009.

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.”

The uncontroverted evidence established that Respondent failed to obtain the required permits for the project. Therefore, Complainant established that Respondent disregarded a building code in a material respect, resulting in prejudice to Complainant, in violation of A.R.S. § 32-1154(A)(2)(b).

The uncontroverted evidence established that Respondent’s work was not in conformity with the Registrar’s and industry standards and was not performed in accordance with applicable building codes. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b).

The uncontroverted evidence established that Respondent’s contract document did not contain all of the statutorily required elements for a contract. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The uncontroverted evidence established that Respondent did not complete the corrective work following the Written Directive being issued and that no valid justification existed for such failure. 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 Nos. 240872 and 333009 for a period of fourteen (14) 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 (30) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, August 8, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000