ALJDEC decisions subject to certification as final
2021A-02943-CHC-ROC · Registrar of Contractors · 2022-05-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jennifer Duncan,
COMPLAINANT
v.
Mora Construction LLC
License No. ROC 327176,
RESPONDENT
No. 2021A-02943-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 27, 2022
APPEARANCES: Complainant Jennifer Duncan appeared and was represented by Rod Galarza. Respondent Mora Construction LLC did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Mora Construction LLC (Respondent) is the holder of License No. 327176 issued by the Arizona Registrar of Contractors (Registrar).
On or about May 16, 2018, Jennifer Duncan (Complainant) signed a contract with Lablonde Development Corporation for the construction of a new home. Respondent was a subcontractor of Lablonde Development Corporation on Complainant’s project.
On or about June 27, 2021, 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. 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 Monday September 20, 2021.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
[Complaint] Item 1: Fireplaces not properly installed. Fireplace venting is touching combustibles (both fireplaces): wooden trusses and insulation, resulting in a safety hazard. Improper fireplace installation is preventing the homeowners from obtaining a permanent Certificate of Occupancy from the City of Scottsdale.
Investigator’s Observation: The respondent is to correct the fireplace venting that is touching combustible wooden trusses and insulation in the attic at both fireplace locations and pass final inspection by the City of Scottsdale by appropriate means.
. . . .
[Complaint] Item 2: Great room fireplace venting is considerably undersized for the size of the fireplace, resulting in a safety hazard. Improper fireplace installation is preventing the homeowners from obtaining a permanent Certificate of Occupancy from the City of Scottsdale.
Investigator’s Observation: The respondent is to correct the great room fireplace flues and venting that is considerably undersized by appropriate means and pass final inspection by the City of Scottsdale.
. . . .
[Complaint] Item 3: Fireplace chase tops / chimney shrouds are not properly constructed. Chase tops and chimney shrouds are not plumb, straight and/or square. Chase tops are constructed in a manner that will pool water against lumber, leading to deterioration and a risk of leaks. Chase tops are also flimsy, bending in the wind, resulting in considerable noise, and will lead to a premature deterioration of the finish.
Investigator’s Observation: The respondent is to correct the fireplace chase top and chimney shroud on the great room fireplace that is not plumb, straight or square by appropriate means.
. . . .
[Complaint] Item 4: Great room fireplace wooden framing under the metal facing is in close proximity to the metal hood, (combustibles within 18" of the fireplace opening) which is a code violation and results in a fire hazard.
Investigator’s Observation: The respondent is to correct the wooden framing under the metal facing that is in close proximity to the metal hood by appropriate means.
. . . .
[Complaint] Item 5: Steps into the east garage do not meet code. There is no landing and the steps are not of a uniform size.
Investigator’s Observation: I am able to verify that there is not a 36” landing installed at the interior side of the east exterior garage man door per IRC Code R311.3 and the steps installed are not uniform in size.
. . . .
[Complaint] Item 7: Pavers: improper edge restraints and excessive gaps between pavers in field and at edges in front and back
Investigator’s Observation: The respondent is to correct the pavers installed with excessive gaps between pavers in the field and improper edge restraints at the front and back of the home by appropriate means.
. . . .
[Complaint] Item 8: Paver installation violates the City of Scottsdale code requirement for proper weep screed. This improper installation is preventing the owners from obtaining a permanent Certificate of Occupancy from the City of Scottsdale.
Investigator’s Observation: I am able to verify that the paver installation violates IRC R703.7.2.1 Weep Screeds.
. . . .
[Complaint] Item 9: Pavers are dipping and/or sagging due to conduit line (also installed by Mora) not being properly capped, resulting in the surrounding dirt and pavers sinking.
Investigator’s Observation: The respondent is to correct the pavers that are dipping and/or sagging resulting in the surrounding dirt and pavers sinking by appropriate means.
. . . .
[Complaint] Item 10: Pavers: unworkmanlike finish. Several areas of pavers in front and back have small, cut pieces that are not similar to the general pattern and result in an unworkmanlike finish
Investigator’s Observation: The respondent is to correct the areas of pavers at the front and back of the home that have small, cut pieces and are not uniform or similar to the general pattern by appropriate means.
. . . .
[Complaint] Item 12: Kitchen hood vent is not properly installed
Investigator’s Observation: The respondent is to determine cause and correct the kitchen hood vent by appropriate means.
. . . .
[Complaint] Item 13: Wood floors were stained/sealed with a product that was not approved by the flooring manufacturer, and results in a finish that is blotchy in color and sheen
Investigator’s Observation: I am able to verify that the sheen and color of the wood floor is blotchy and not uniform with the surrounding flooring.
. . . .
[Complaint] Item 17: Flooring has paint splatter
Investigator’s Observation: I observed and am able to verify that the flooring has paint splatter.
. . . .
[Complaint] Item 18: Dining room cabinet door repair was not completed in a workmanlike manner
Investigator’s Observation: The respondent is to correct the dining room cabinet door repair that was not completed in a workmanlike manner.
. . . .
[Complaint] Item 22: Solar tubes are improperly installed
Investigator’s Observation: The respondent is to correct the solar tubes that are installed improperly by appropriate means.
. . . .
[Complaint] Item 23: Retaining walls are not completed per City of Scottsdale code. The retaining walls were not built per approved plans, lack proper inspections, and are not capped and painted.
Investigator’s Observation: The respondent is to satisfy the City of Scottsdale special inspection requirements for the retaining walls by appropriate means.
Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Fagerberg was notified no corrective work had been performed.
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; 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 Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on January 19, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
The hearing was continued and was ultimately held via Google Meet on April 27, 2022.
Respondent did not request that the hearing be continued again. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Fagerberg testified as to his observations of the project during his investigation of the complaint. Investigator Fagerberg also noted that during the prehearing inspection he conducted on April 25, 2022, no changes to the items in the directive had been made.
Complainant testified that the contract price for the new home was set at $1.321 million with a maximum cost of $1.6 million. Complainant stated she had already paid $1.65 million on the project.
Administrative notice is taken of Respondent’s prior License record on May 16, 2022. Such prior License record reflects that Respondent’s License No. 327176 was first issued on December 18, 2019, and was suspended on January 3, 2022, for non-renewal. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
Respondent’s administratively suspended license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-110054(D).
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 did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).
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.
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. 327176 for a period of five 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 18, 2022.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary