ALJDEC decisions subject to certification as final

2021A-03643-CHC-ROC · Registrar of Contractors · 2022-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lloyd Thomas Buse,

COMPLAINANT

Central Arizona Builders LLC

License No. ROC 300550,

RESPONDENT

No. 2021A-03643-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 28, 2022, with the record held open until April 29, 2022

APPEARANCES: Complainant Lloyd Thomas Buse appeared on his own behalf. Michael Pareja, Owner and Qualifying Party, appeared on behalf of Respondent Central Arizona Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Central Arizona Builders LLC (Respondent) is the holder of License No. 300550 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 7, 2020, Lloyd Thomas Buse (Complainant) entered into a contract with Respondent for the renovation of an existing deck. The contract did not include an estimated date of completion or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about August 1, 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 Steve Philpott. After a jobsite inspection, Investigator Philpott 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 October 15, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - To whom it may concern; On May 7th, I, Lloyd T. Buse, and wife, Barbara A. Buse entered into a contract with Michael Pareja and Central Arizona Builders, LLC.

We agreed to have Central Arizona Builders raise the deck and remove a central 14 foot, load bearing beam and install a new beam, this included raising the roof and installing existing pillar on the new beam.

The contract also called for removing existing stairs and building new stairs, the contract also included removing the existing wood decking, removing and replacing any rotten joists and installing new Trex decking and lattice with an entrance.

On May 9th, 2020, Barbara wrote a $6000 check to get the job started. On May 14th, 2020, I wrote a check for the remaining $7000 on completion of the job. On May 25, 2020, I received a receipt for $12,995 from Central Arizona Builders, LLC.

Almost immediately, Barbara noticed that the deck squeaked in several places. I noticed that every time my 50 pound dog pranced across the deck, the whole deck bounced. We called Michael Pareja several times to address our concerns, but Michael would not come back out and instead sent a worker named, Derek, who was not part of the original job. Derek put a couple of shims under the deck to silence the squeaks, it didn’t work for long and never addressed the need for more under deck support.

Due to health issues, I was not physically able to crawl under the deck and inspect the work done until just recently. I was shocked to see how the center beam was installed. Instead of raising the centerbeam, they notched the beam at both ends and put small blocks to get the beam up to level. I don’t expect these wood blocks at both ends to hold up for very long during monsoon season.

The steps to the deck are not level from top to bottom. Neither the deck nor the stairs are even close to level.

They used painted wood to replace some of the rotted joists instead of treated wood. They did not replace enough of the rooted joists.

Overall, the quality of work is unsatisfactory, unsafe, and the entire project needs to be reworked.

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means. Permits for this project were not obtained as required by the Yavapai County Building Departments. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed. Completed project must comply with original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Following the issuance of the written directive, Respondent provided information to Yavapai County for permit approval. After the deadline in the directive expired, Investigator Philpott was notified the application for the permit had been submitted, but it had not been approved.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a) and (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).

Investigator Philpott testified that the work detailed in the contract required a permit, but Respondent did not obtain one prior to performing the work. Investigator Philpott stated that as of December 16, 2021, the permit still had not been issued, so the matter was forwarded to legal. Investigator Philpott maintained that as of the date of the hearing, the permit still had not been issued. Investigator Philpott discovered that the plans had been rejected by the county and needed to be resubmitted for approval.

Complainant testified that the support beam was not structurally supported by the 14 foot beam under it. Complainant noted that he could already observe that the vertical support beam had shifted some.

Mr. Pareja testified that he did not deny any of Complainant’s statements. Mr. Pareja asserted that the plans were with the county and awaiting approval.

At the conclusion of the hearing, the parties agreed to allow Respondent additional time to complete the project. With the understanding the permit approval process could take some time, the parties agreed to leave the record open for a period of 60 days to allow the corrective work to be completed.

At the conclusion of the 60 days, Complainant notified the Office of Administrative Hearings that the work had not been completed and, in fact, he had not heard from Respondent since the initial hearing had been conducted.

Administrative notice is taken of Respondent’s prior License record on May 19, 2022. Such prior License record reflects that Respondent’s License No. 300550 was first issued on August 10, 2015, and is current. 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.

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 plans without Complainant’s consent and the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the plans and the applicable building code in violation of A.R.S. § 32-1154(A)(2)(a) or (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(a) and (b).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not 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. 300550 for a period of five days.

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.

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.

-54864001

001

-137160-45720000Done this day, May 19, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary