ALJDEC decisions subject to certification as final

2021A-03615-CHC-ROC · Registrar of Contractors · 2021-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Larry Lee,

COMPLAINANT

Jay's Construction, Inc.

License No. ROC 196980,

RESPONDENT

No. 2021A-03615-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 13, 2021

APPEARANCES: Complainant Larry Lee appeared on his own behalf. Yolanda Lee appeared as a witness. Vincent Chlarson appeared on behalf of Respondent Jay’s Construction, Inc. Arizona Registrar of Contractors Investigator Mike Springer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Jay’s Construction, Inc. (“Respondent”) is the holder of License No. 196980 issued by the Arizona Registrar of Contractors (“Registrar”).

In or about August 2020, Larry Lee (“Complainant”) contracted with Respondent for the replacement of his existing roof and patio, and for the construction of a peak roof addition.

On or about July 30, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Mike Springer. After an August 23, 2021 jobsite inspection, Investigator Springer 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 September 10th, 2021.

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

Compliance Item: 1 - Leaks on back patio area effecting the hot water heater area , flooding the floor area.

Investigator’s Observation: A water test was conducted and approximately 5 minutes into test, water began to leak at the midpoint of the

patio.

Compliance Item: 4 - New Trusses that Jay's built, trusses setting on the

original eves/fascia area of the house, new roof not properly installed.

Investigator’s Observation: I spoke to Mike Payne, City Inspector for

the town of Thatcher. He stated the work should have had a permit. I cannot

verify how the trusses are bearing. A permit will need to be applied for and

inspections approved.

Compliance Item: 5 - Jay's workers Re-decked the back patio on the top of the old one. Did not remove old deck. Randy (worker of Jay's) it was Randy's son fell through the roof. Contractor charging me for repairs they caused.

Investigator’s Observation: There is a second layer of OSB on top of the

old roof on the patio this will need to be approved or disapproved through the required building permit.

Compliance Item: 7 - Water running down by the back door by the back end of the house, various Jay's workers during roofing damaged the connecting roof's area's and water is pouring through.

Investigator’s Observation: The roof has a droop over the back door causing water to drain to the side. The roof pitch is set to the West in general

but this area is sagging enough to allow water to flow East over the door.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Leaks on Carport area, water running down wall area

and the original screw holes from the original roofing is where water is also

coming through.

Investigator’s Observation: This was corrected prior to the Jobsite inspection.

Compliance Item: 3 - Incomplete Fascia boards.

Investigator’s Observation: The rear of the house where the new roof was put on top of the old has a Masonite type fascia over the new 2x6 fascia. The front of the house has raw wood. There is no mention of new fascia anywhere in the contract. I cannot verify what was supposed to be done.

Compliance Item: 6 - Jay's workers put cut up small pieces of boards where they tried to match existing roof, state they repaired and will not correct.

Investigator’s Observation: This was corrected prior to the jobsite inspection.

Compliance Item: 8 - On July 23, 2021 at approx. 10:35 am a female person stating she was with Jay's Construction called and wanted a payment from us and I explained that the job still had issues and was not completed. She then stated Jay's Construction would be taking this to court. I explained again about all the leaks and issues and she just kept repeating I had to pay the final bill of $10,482.78, she stated that the amount was for the labor and materials. I told her we would not pay until the job was complete. Again she stated that they were going to take us to court for the final payment.

Investigator’s Observation: This is a financial dispute which I do not have jurisdiction over.

All errors in original.

The time period for compliance with the Written Directive was extended twice in order for the local building authority to complete the required inspections. After the extended time period for compliance with the Written Directive expired, Investigator Springer ascertained that Respondent had not complied with the Written Directive.

Investigator Springer forwarded the Complaint 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(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Springer testified that he conducted a pre-hearing inspection on December 9, 2021, and that there were still outstanding items not rectified by Respondent. Investigator Springer testified consistently with the findings contained in the Written Directive. Investigator Springer testified specifically that: i) Complaint item number 1 has not been corrected as a leak continues to exist; ii) Complaint item number 4 has not been rectified. Although a permit has been obtained, the local building official requires plans to be submitted, and those plans have not been submitted and all inspections have not been passed; iii) Complaint item number 5 still requires approval from the local building official; and iv) as to Complaint item number 7, Respondent installed a gutter, however, the wood damage has not been repaired. Investigator Springer testified that Respondent has not complied with the Written Directive.

Investigator Springer further testified that Respondent’s contract documents failed to include an estimated completion date for the work and information regarding how to file a complaint with the Registrar.

Investigator Springer did not verify any interior leaks.

Complainant testified that he has an engineering report dated September 24, 2021, for the city required plans and that it contains the information that the city has requested. Complainant further testified regarding the parties’ contracts, the invoices received from Respondent, and photographs of Respondent’s work on the project. Complainant testified that he wants the pitch correctly installed.

Yolanda Lee, Complainant’s wife, testified that the job is incomplete and that she requested that Respondent return to complete the work specified in the contracts. Mrs. Lee testified that Respondent did not return any of her calls, and only contacted Complainant to request payment. Mrs. Lee asserted that the work performed by Respondent was “incorrect and is causing damage to the home.”

Vincent Chlarson, Business Director for Respondent, testified that Respondent acted promptly in response to the Complaint, however, Respondent received “very little cooperation from the building official.” Mr. Chlarson testified regarding Respondent’s answer to the Complaint, the extensions for the Written Directive, the permit and required plans. Mr. Chlarson testified that Respondent initiated the engineer report and approved drawings, however, Respondent needed to follow through with the engineer’s recommendations, and although Respondent received a verbal approval from the city inspector, there was “no sign off from the building official.”

Mr. Chlarson asserted that in regard to the trusses, the “only thing missing is webbing” and the gussets. Mr. Chlarson testified that Respondent offered to complete the truss system, however, no further action on the truss system was taken.

Regarding the administrative violations, Mr. Chlarson testified that Respondent’s contract has been amended to include the required provisions.

Administrative notice is taken of Respondent’s prior License record on December 20, 2021. Such prior License record reflects that Respondent’s License No. 196980 was first issued on June 10, 2004, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplined complaints, and zero resolved/settled complaints 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.”

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).

The evidence established that Respondent failed to include in its contract the estimated date of completion of the project and the advisement that a property owner has the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The evidence established that Respondent did not complete the corrective work following the Written 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. 196980 for a period of five (5) 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)(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 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 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, December 29, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000