ALJDEC decisions subject to certification as final
2021A-04332-CHC-ROC · Registrar of Contractors · 2022-09-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Adam Jones
COMPLAINANT,
v.
A & E Development LLC
License No. ROC 316657,
RESPONDENT.
No. 2021A-04332-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 15, 2022
APPEARANCES: Complainant Adam Jones appeared on behalf of himself. Joseph G. Urtuzuastegui III, Esq. appeared on behalf of Respondent A & E Development, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about January 20, 2021, Complainant Adam Jones and Respondent A & E Development, LLC ( A & E) entered into a residential remodeling contract, wherein A & E would remodel the home of Complainant Adam Jones.
2. On or about February 8, 2021, A & E started work.
3. On or about September 2, 2021, A & E stopped work.
4. On or about September 3, 2021, the Arizona Registrar of Contractors (ROC) received a complaint from Mr. Jones alleging poor workmanship on the part of
A & E.
5. On September 27, 2021, ROC Investigator Doug Barrett conducted an initial job-inspection.
6. On September 27, 2021, the ROC issued a Directive to A & E. The September 27, 2021 Directive provided, in relevant part, 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 11-01-2021.
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Compliance Item: 1 - Project has taken well beyond agreed upon time frame for completion. Many structural issues with framing and framers. Went through 3 different groups of framers. Have built and replaced 3 roofs. Roof had bad design, attempted to improvise, had to reorder trusses, ordered incorrect trusses Didn't build roof according to city stamped plans. Roof is leaking and has water collection spots due to incorrect slopes.
Investigator’s Observation: Verified. I observed moisture staining in the second master bath upper left corner of the shower and in the left corner of bedroom two. These spots were below a flat section of roof added by the respondent and the leak appeared to be coming from the edge. There was also a section of unfinished roof to the back of the home with no roofing material and just exposed plywood. Roofs should not leak and should be installed to withstand winds accompanied by heavy rains. Respondent stated he needed to repair the roof and discussed a repair with the roofer during the inspection. Contractor should repair by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4- 9-108
Compliance Item: 3 - Changed main plumbing and drainage without notifying and consent from us, the home owner. Plumber trenched from backyard through front appx 8 foot trench didn't back fill or clean up Investigator’s Observation: Verified. I observed sunk in trenches that had been filled after sewer line was installed. I observed mounds of dirt around the property and uneven grade around the foundation of the addition. Excessively settled areas are unacceptable. The contractor should upon notification of this condition, fill and compact the affected area taking care to maintain proper slope and drainage. Grades should be established to insure proper drainage away from the structure. No standing water should remain in the yard more than 48 hours after rain, unless requirements specify retention of storm water in yard. Contractor should correct deviations from the established grades, but is not responsible for conditions caused by others not under the contractor’s control. The respondent stated during the inspection that final grade work still needed to be completed. Contractor should correct by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4- 9-108
Compliance Item: 9 - Missing toilet from existing bathroom that wasn't in plans, not replaced Investigator’s Observation: Verified. I observed a toilet not installed in the hall bathroom. Complainant and respondent agreed this was removed by the respondent during demo. The toilet was thrown away during this time and not retained for reinstallation. Contractor stated the respondent was going to get a new toilet for this room. There is no mention of this toilet being replaced in the contract. Contractor should repair by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4- 9-108
Compliance Item: 11 – Concrete shower pan and drainage issues. Investigator’s Observation: Verified. This item has not been completed and is actively being worked on. There was no pan installed to inspect any drainage issues. The whole shower needs completed. Contractor to correct by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 12 - Countertop that we paid for and isn’t anywhere to be found. Investigator’s Observation: Verified. The respondent stated this item is to be installed after other work is completed as to prevent damage from other construction. Respondent stated the counter has been ordered and will be installed. Contractor shall repair by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 14 – Fascia trim and flashing that was to match existing per contract agreement. Investigator’s Observation: Verified. Installed flashing and trim is not complete and has exposed wood and gaps. Respondent stated he still needs to complete trim and paint. Contractor should repair by appropriate means.
0Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 17 – Nothing was put in place on the exterior to help bind and support the stucco which will continue to crack throughout time. Investigator’s Observation: Verified. The stucco was installed however, there are voids and chunks missing around a sewer cleanout on the east wall. There are also chunks of stucco missing with exposed nails around bedroom two’s window. Contractor should repair by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
ITEMS NOT REQUIRING CORRECTION The following complaint items require no action by the Respondent:
Compliance Item: 2 - Replace existing drywall multiple times due to rain damage and lack mitigation of storm protection Personal items damaged by rain inside house. Had to provide and place tarps myself over open wall to interior of house for rain damage prevent. May through July with weeks on end with no work accomplished Investigator’s Observation: Unverified. Damaged drywall has been replaced.
Governing Rule: N/A
Compliance Item: 4 - Mature tree is dead due to trenching 6 inches from base of tree. All landscape is dead or almost dead due to broken irrigation system from plumber. Backyard irrigation clock was ripped out and buried under dirt and debris. All mess still remains
Investigator’s Observation: This item is addressed in item number 3 for grading and piles of dirt. Damaged irrigation during the installation of sewer lines is not the responsibility of the contractor.
Governing Rule: N/A
Compliance Item: 5 - Sent recent invoice for $13,500 for items contractor said forgot to put into bid. $8500 over bid Investigator’s Observation: Unverified. This item involves a financial dispute and does not implicate a workmanship issue, or violation of A.R.S § 32-1154(A).
Governing Rule: N/A
Compliance Item: 6 - Placed window in different place than was designed
Investigator’s Observation: Unverified. Complainant stated this item has been resolved.
Governing Rule: N/A
Compliance Item: 7 - Moved a structural wall without consent decreasing width of hallway and shorting living room wall Investigator’s Observation: Unverified. Complainant stated this item has been resolved.
Governing Rule: N/A
Compliance Item: 8 - Major lack of oversight from contractor leaving room for error with sub-contractors Overflowing 40 yard dumpster been sitting in front of house for months, many neighbor complaints Investigator’s Observation: Unverified. These are general statements and the complainant stated the dumpster had since been removed.
Governing Rule: N/A
Compliance Item: 10 - Had architect revise roof plans before he was fired. Architect returned $7000 for terrible plans and major mishaps. Gave the $7000 to contractor to rebuild and order new trusses. Still want to charge us for part of the roof. Labor showing up at house asking for payment because contractor not answering or returning their phone calls and owes them money. House was never secured since start date Investigator’s Observation: Unverified. This item involves a financial dispute and does not implicate a workmanship issue, or violation of A.R.S § 32-1154(A).
Governing Rule: N/A
Compliance Item: 13 – Electrical work that is not complete with hot wires sticking out of outlet boxes. Investigator’s Observation: Unverified. Complainant stated this item has been resolved.
Governing Rule: N/A
Compliance Item: 15 – Roof roll doesn’t match existing roof shingle color which per contract states to match existing roof. Investigator’s Observation: Unverified. Complainant stated this item is not a concern at this time.
Governing Rule: N/A
Compliance Item: 16 - Contractor built approximately an 18” wall to raise the ceiling for roof adjustments that isn’t tied or strapped to the wall creating a possible structural weakness. Investigator’s Observation: Unverified. This item is covered by drywall and stucco and is not visible. There is not sufficient evidence to find the respondent failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
7. On November 8, 2021, Investigator Barrett conducted a compliance job-site inspection. Investigator Barrett concluded that A & E had not corrected the Directive items.
8. On November 17, 2021, the ROC issued a Citation to A & E alleging that
A & E had violated Arizona Revised Statutes (A.R.S.) section 32-1154 (A)(3) and Arizona Administrative Code R4-9-108(a).
9. A & E filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on February 7, 2022.
12. After the hearing convened, the parties requested to discuss the matter off of the record to try and resolve their dispute.
13. The parties agreed to have the matter set for a status update to afford the parties additional time to resolve the matter which included corrective work to be performed by A & E.
14. On March 24, 2022, Investigator Barrett conducted a compliance job-site inspection. Investigator Barrett concluded that A & E had corrected all of the Directive items.
15. On May 4, 2022, Mr. Jones requested that the matter be reset for hearing alleging that the Directive items were not wholly complete.
16. The matter was reset for hearing for June 30, 2022, and subsequently continued to August 16, 2022 based on Mr. Jones’s motion for a continuance.
17. A hearing was held on August 16, 2022.
18. At hearing, Investigator Barrett testified regarding his investigation of including the issuance of the Directive. Mr. Jones testified on behalf of himself and presented the testimony of his wife, Brooke Jones. A & E presented the testimony of Eddie Valenzuela.
19. Investigator Barrett and Mr. Valenzuela explained that A & E repaired all of the Directive items.
20. Mr. Jones stated that A & E performed poor corrective work.
21. Mrs. Jones explained that the only condition that concerned her was the quality of the roof. Mrs. Jones alleged that the roof was built with tar. However,
Mrs. Jones conceded that the Directive items were for the most part completed.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The preponderance of the evidence shows that A & E had not performed its work in professional manner at the time that the Directive was issued. The preponderance of the evidence shows that A & E violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the ROC’s Directive by November 1, 2021.
5. However, the preponderance of the evidence also shows that A & E has corrected all of the listed in the September 27, 2021 Directive. Therefore, it is not appropriate in this case to impose discipline or a civil penalty.
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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 this day, September 6, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary