ALJDEC decisions subject to certification as final

2021A-02826-CHC-ROC · Registrar of Contractors · 2022-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tom Daly,

COMPLAINANT,

v.

Arizona Pure Custom, LLC

License No. ROC 239705,

RESPONDENT.

No. 2021A-02826-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 20, 2022

APPEARANCES: Dustin Romney, Esq. appeared on behalf of Complainant Tom Daly. No one appeared on behalf of Respondent Arizona Pure Custom, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about January 17, 2018, Complainant Tom Daly and Respondent Arizona Pure Custom, LLC (Arizona Pure) entered into a contract wherein Arizona Pure would build a new home for Mr. Daly for the amount of $704,879.

2. Arizona Pure started construction in or about February of 2018.

3. Arizona Pure stopped construction in or about February of 2019.

4. On or about June 21, 2021, the Arizona Registrar of Contractors (ROC) received a complaint from Mr. Daly alleging abandonment on the part of Arizona Pure.

5. The complaint was assigned to ROC Investigator Beau Cruz.

6. On or about July 23, 2021, Investigator Cruz conducted an job-site inspection.

7. On July 26, 2021, the ROC issued a Directive against the license of Arizona Pure. The Directive provided, in relevant part, as follows:

Dear Respondent: 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 August 10, 2021.

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:

Complaint Item 1: Flooring: stains/footprints on tile throughout the home; chipped tiles in Family room guest bedroom

Investigator’s Observation: Differing colors of grout noted in between plank tiles throughout installation. Chipped tiles noted in Great Room, south hallway, by entry to Guest Room and other areas.

Governing Rule: Workmanship Rule: Regarding differing color of grout lines and chipped tiles, A.R.S §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 2: Bathrooms: baseboards; toilet paper holders; tub spout; float mirror in powder room; window handle

Investigator’s Observation: Respondent failed to match profile and paint the baseboard in Guest Bedroom bathroom to the baseboards of other areas of home. Different profile & incompletely painted baseboard in Guest Bathroom). Toilet paper holder in Master Bathroom water closet room is dislodged off the bracket and bracket is not properly secured to the wall and was noted sitting on top of toilet tank. Casement window on the west (W) wall of the Master Bathroom is missing locking handle.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 3: Cabinets: adjustments to kitchen cabinets, guest bath cabinet door, and add cabinet trim in office

Investigator’s Observation: Left base cabinet door installed on the east (E) wall of the kitchen to left of the refrigerator, is sitting ajar unable to be closed, due to rubbing against the right door. Left wall cabinet door installed on the north (N) wall of the kitchen to right of the range hood, is sitting ajar unable to be closed, due to rubbing against the right door. Left wall cabinet door installed on the north (N) wall of the kitchen to left of the range hood, is sitting ajar unable to closed, due to rubbing against the right door.

Office wall cabinet unit is missing the right scribe mold to left of right cabinet doors.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 4: Pool: pots need to be “shimmed”; replace shallow end pool light; pool auto filler adjustment/repair

Investigator’s Observation: Uneven water level in the pool pot(s) water features on the west (W) side of the pool and, water running over back edges of pots. Auto filler valve for pool unable to keep water level due to being impacted by cover.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 5: Paint: paint dormers in back of house; kids room touch up paint and decora switch cover

Investigator’s Observation: Failed to paint metal base flashing below the southwest (S/W) dormer window and, northwest (N/W) dormer window. Light switch in in Girl’s Room closet missing switch plate. Failed to paint wall repairs walls in Girl’s Room closet.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 6: Windows: remove stickers; clean dormer windows

Investigator’s Observation: Imprint resembling "Smiley" face on southwest (S/W) dormer window.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 7: Weather strip garage to house door

Investigator’s Observation: Missing weather stripping noted on hinge side jamb of the garage fire door.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 8: Front door concrete trimmed out; fill in stones around front door

Investigator’s Observation: Concrete threshold (stoop) chipped in numerous areas with exposed metal reinforcement visible.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 9: Reset pocket door (need access door on outside); pocket door paint

Investigator’s Observation: Controller for recessed patio door failed to operate door. The controller is concealed behind stucco with no access panel installed on the exterior. Excessive scratching and damaged/missing paint noted on recessed patio door track.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.

Complaint Item 10: Install voltage boxes and plates on exposed wiring

Investigator’s Observation: Failed to properly conceal four (4) prewired low voltage wiring on exterior of the house.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.

Complaint Item 11: Balance all ceiling fans

Investigator’s Observation: Ceiling fan in Great Room wobbles and is out of balance. Ceiling fan in Rumpus Room wobbles, out of balance and ticking sound heard emanating from ceiling fan while energized. Ceiling fan in Boy's wobbles, out of balance and, ticking sound heard emanating from ceiling fan while energized. Ceiling fan in Office wobbles and is out of balance.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.

8. Arizona Pure failed to correct the items listed in the Directive by August 10, 2021.

9. Investigator Cruz conducted a compliance job-site compliance inspection and concluded that Arizona Pure has not corrected items 1, 2, 8, 9, 10, and 11.

10. On August 27, 2021, the ROC issued a Citation against Arizona Pure’s license. Through the Citation, the ROC alleged that Arizona Pure may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) R4-9-108(a); A.R.S. § section 32-1154(A)(22).

11. Arizona Pure filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. On September 29, 2021, the ROC issued a Notice of Hearing setting the matter for hearing on November 1, 2021.

14. On January 18, 2022, ROC Investigator Randy Cason conducted a pre-hearing inspection. Investigator Cason observed that the only item that Arizona Pure had not corrected was item number 1.

15. A hearing was held on January 20, 2022.

16. At hearing, Mr. Daly testified on behalf of himself. ROC Investigator Randy Cason testified regarding Investigator Cruz’s investigation of the complaint. Investigator Cason testified regarding his pre-hearing inspection.

17. Mr. Daly explained that Arizona Pure performed poor work in the construction of his home.

18. No one appeared on behalf of Arizona Pure at the hearing on January 20, 2022. No one filed a request to appear telephonically on behalf of Main. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Arizona Pure through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Arizona Pure did not present any evidence to defend its license.

19. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 9, 2022. Such prior License record reflects that Respondent’s License No. ROC 239705 was issued on November 16, 2007 and is currently active. Such prior License record shows that there are three complaints open against Respondent’s license. Such prior License record shows that one complaint has resulted in discipline against Respondent’s license. Such prior License record shows that one complaint was closed against Respondent that was resolved or settled by the contrac tor or withdrawn by the complainant after the issuance of a corrective work order or formal citation. Respondent’s disciplinary history is considered an aggravating factor in the imposition of 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, 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).

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. Upon consideration of the evidence presented at hearing, the

Administrative Law Judge concludes that Respondent’s work failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

6. Because Respondent has violated the applicable statutes, the ROC has authority to discipline its license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the ROC shall suspend License No. ROC 239705 held by Arizona Pure Custom, LLC for three 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 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 Ariz. Rev. Stat. section 32-1101(A)(7), 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 is forty days after the date of that certification.

Done, February 9, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors