ALJDEC decisions subject to certification as final

2021A-04363-CHC-ROC · Registrar of Contractors · 2023-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ambre D Kirk,

COMPLAINANT

G M K Building and Development LLC

License No. ROC 256241,

RESPONDENT

No. 2021A-04363-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 6, 2022 and December 6, 2022, with the record held open until December 16, 2022.

APPEARANCES: Complainant Ambre D. Kirk appeared via Google Meet and was represented by Richard Crenshaw, Esq. also appearing via Google Meet. Respondent G M K Building and Development LLC was represented by James Palacek, Esq. who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

G M K Building and Development LLC (Respondent) is the holder of License No. 256241 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 17, 2021 Complainant agreed to have Respondent remodel the interior of her house. The total cost was to be $95,837.39.

On or about September 3, 2021, the Registrar received a Complaint containing five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Lisa Melton. The jobsite inspection was performed on October 28, 2021.

On November 8, 2021, Investigator Melton 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 December 9, 2021.

. . .

Compliance Item 3: Contractor removed load bearing wall and never had it inspected for safety.

Investigator’s Observation: Respondent did not obtain a permit. Their scope of work includes addition of new outlets in kitchen (4) and primary/master bath (2), removal/replacement of shower floor and removal of two walls in dining area. It appears that the Respondent performed work requiring a permit without obtaining the required permit(s)/inspection(s). Respondent should comply with the requirements of the local building authority and obtain required permit(s)/inspection(s) for the work they performed. Respondent should provide copies of closed permit/passed inspection(s) to Investigator.

Governing Rule: A.R.S. §32-1154 (A) (2) (b), Departure from or disregard of: A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Compliance Item 4: New interior doors don’t close properly. Contractor oral

bid for each door was $125, but charged us $345/door without ever discussing the price change.

Investigator’s Observation: Hall door(s) and bedroom door do not close

properly. Respondent alleged modification due to removal by painter but paint appears in the contract and a financial spreadsheet prepared by Respondent. Respondent should correct this condition by appropriate methods.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On December 13, 2021, Investigator Milton issued a new Written Directive for the sole purpose of extending the compliance date to January 5, 2022.

On December 13, 2021, Complainant filed an Amended Complaint informing Investigator Milton that Respondent had installed a gas line without obtaining a permit for the same.

A Jobsite Inspection was scheduled for January 11, 2022 and later rescheduled for January 25, 2022, based upon the Amended Complaint.

On February 1, 2022, Investigator Melton issued Warning Letters to Respondent for failure to obtain permits and failure to meet minimum elements of a contract.

Also on February 1, 2022, Investigator Melton issued an Addendum Written Directive which provided as follows:

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 3: Contractor removed load bearing wall and never had it inspected for safety.

Compliance Item 4: New interior doors don’t close properly. Contractor oral bid for each door was $125, but charged us $345/door without ever discussing the price change.

Investigator’s Observation: Hall door(s) and bedroom door do not close properly. Respondent alleged modification due to removal by painter but paint appears in the contract and a financial spreadsheet prepared by Respondent. Respondent should correct this condition by appropriate methods

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item 6: Contractor left trash debris on side yard.

NOTE FROM ROC INVESTIGATOR: THIS ITEM WAS INSPECTED ON 10/28/21 AND IS CONTAINED IN THE JOBITE NOTES FROM THAT INSPECTION, HOWEVER, IT WAS UNINTENTIONALLY OMMITTED FROM THE ORIGINAL DIRECTIVE.

Investigator’s Observation: The debris appears to be related to the Respondent’s “wash out” at hose location in side yard. Respondent should correct this condition by appropriate methods.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item 7:

George Kasnoff, GMK, had natural gas moved into our kitchen to accommodate our new gas range. The old range was electric. Gas needed to be moved over, but no permit was pulled and no inspection was completed.

Investigator’s Observation:

Respondent acknowledged that he did not obtain permit for gas connection installation. He stated that the work was performed by his plumber and provided a copy of plumber’s invoice. Respondent acknowledged that he paid the plumber for this scope of work on this project. Respondent should comply with the requirements of the local building authority and obtain required permit(s)/inspection(s) for the work they performed. Respondent should provide copies of closed permit/passed inspection(s) to Investigator.

(All errors contained in original).

On February 28, 2022, Complainant sent an email to Investigator Melton that the Respondent fixed the doors, but nothing else had been remedied.

On March 4, 2022, 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(a); and A.R.S. § 32-1154(A)(22).

On or about March 14, 2022, Respondent timely e-mailed an Answer to the Registrar.

On or about March 25, 2022, a Notice of Hearing was issued setting a hearing on May 9, 2022 at the Office of Administrative Hearings, an independent state agency.

After several continuances a hearing was held on October 6, 2022 and a further hearing was held on December 6, 2022. Further, the record was held open until December 16, 2022 for the parties to submit written closing arguments.

At hearing, Investigator Melton testified as to the Registrar’s involvement and the above timeline.

Investigator Melton testified that Respondent failed to obtain the proper permits for the demolition of the load bearing wall and the gas and electrical lines. Further, to her knowledge the permits remained open. Investigator Melton also testified that Complainant was required provide access during the corrective work period.

In addition, Investigator Melton testified that Directive items 3 and 7 were not in compliance as the building permit was not closed and there was no permit obtain for the gas line.

As to the building permit, Investigator Melton testified there is no statutory or other authority with the Registrars standards as to whether Respondent should have been at the permit inspection.

As to the gas line permit, Investigator Melton testified that because the work was done under the direction of Respondent, it would be Respondent’s responsibility to make sure that all inspections were scheduled.

Complainant testified on her own behalf and offered 18 exhibits into evidence.

Complainant testified that she contracted for the removal of a load bearing wall, and inquired as to the necessity of a permit, but never applied for the same.

Complainant testified further that while she never denied access to Respondent, she also had not requested any final inspection from the city.

In addition, Complainant testified that the original contract did not include the moving of the gas line, the parties agreed to have the work performed, and again no permit was obtained by Complainant.

Complainant also testified that no work on the permitting issue was done between the dates of February 1, 2022 and February 28, 2022.

Respondent presented the testimony George Kasanoff and offered 21 exhibits into evidence.

Mr. Kasanoff testified that as soon as the Directive was issued, he immediately fixed the doors and started work on applying for the permit. He also testified that he filed the drawings at the same time.

In addition, Mr. Kasanoff testified that he turned to a structural engineer to help with the permits on March 10, 2022.

Mr. Kasanoff testified that once he got the report he sent the same to Investigator Melton and Complainant.

Also, Mr. Kasanoff testified that he requested inspections three times but could not recall the specific dates.

As to the gas line, Mr. Kasanoff testified that this was not a part of the original scope of work, and was put in “extra” after the contract was executed. Mr. Kasanoff also testified that he did not obtain a permit for the same because he thought Southwest Gas was responsible for the same.

On cross-examination, Mr. Kasanoff testified that the contract required him to get the permits for the project.

Administrative notice is taken of Respondent’s prior License record on January 3, 2023. Such prior License record reflects that Respondent’s License No. 256241 was first issued on June 8, 2009, and reflects that there was 1 open complaint including the present complaint.

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 Vazzano 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 preponderance of the evidence established that permits were not obtained for the work that was done on the interior of the home for the removal of the load bearing wall and the electrical work as described in Directive item 3. Further, Respondent failed to either obtain or ensure that permits were obtained for the gas connection installation as described in Directive item 7. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(2)(b). Further, the tribunal was no persuaded by Respondent’s argument that Complainant was not prejudiced by the lack of permit. Had Respondent properly applied for the permits at the outset, all of these issues could have been resolved. Any potential issues with the structure could have been remedied and the project likely would be completed. The fact that the project was still incomplete, clearly prejudiced Complainant.

The preponderance of the evidence established that interior doors were not installed correctly as described in Directive number 4, and that Respondent left trash debris in the side yard as described in Directive item 6. 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).

As to the issue regarding the corrective work, the evidence 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). While the doors were properly repaired, the evidence provided that the permits had not been closed out and the trash had not been removed.

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. 256241 for a period of ten 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.

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 30 days from the date of that certification.

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Done this day, January 3, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Richard N. Crenshaw

[email redacted]

James J. Palecek, Esq.

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

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