ALJDEC decisions subject to certification as final

2021A-04642-CHC-ROC · Registrar of Contractors · 2022-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David G Vineyard,

COMPLAINANT

J J L Design & Build LLC

License No. ROC 264084,

RESPONDENT

No. 2021A-04642-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 7, 2022

APPEARANCES: Complainant David G. Vineyard appeared on his own behalf. Brett Arrington, Manager, appeared on behalf of Respondent J J L Design & Build LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

J J L Design & Build LLC (Respondent) is the holder of License No. 264084 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 12, 2021, David G. Vineyard (Complainant) entered into a contract with Respondent for the installation of a new roof. The contract did not include an advisement that Complainant had the right to file a complaint with the Registrar.

On or about September 20, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Mike Springer. After a 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 October 27th, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Abandonment: Violation of ARS 32-1154(a) At this time it has been over 5 months since the contract was signed on Apr 12, 2021. It is 3-1/2 months past the contracts completion date of June 1, 2021. The last instance when the contractor did any work to tear off the roof tile was 1-1/2 months ago, Aug 5, 2021. The contractor has confirmed multiple times, including on Sept 17 that he does not have a skilled team available to install the roof. Contractor has refused to provide evidence I asked for to support his claim that he had procured the requisite materials. Contractor emailed on Sept 16 showing he has no possession of said material or knowledge of when he will acquire them. To date, contractor has broken more that 6 promised dates to start installation of the roof. As of Sept 18, the contractor will not provide an estimate or update on when he will obtain materials and when the installation will be started or completed. Acquisition of materials that are prerequisite considering the manufacturer/supplier requires orders 10 days in advance to pickup / delivery. The contractor has failed to acquire the materials prior to any promised start date listed below. The contractor refuses to give any evidence acquiring any materials in the past. The contractor has not provided a delivery date for materials he said were on order. The contract designates that JJL Design and Build is to provide all the materials for the project.

. . . .

Investigator’s Observation: Original tile roof has been removed and underlayment installed. No materials on site or work has begun to install new metal roofing.

Governing Rule: 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.

Following the issuance of the written directive, Respondent did not perform any additional work prior to the deadline. After the deadline in the directive expired, Investigator Springer 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)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Springer testified as to his observations of the project during the jobsite inspection.

Complainant testified that Respondent failed to obtain the materials for the project in a timely manner and kept delaying the start of the project. Complainant alleged that Respondent abandoned the project because it took so long for the work to begin. Complainant acknowledged that, at the time of the hearing, Respondent was installing the roof on the house and would be completed in the coming days.

Mr. Arrington testified as to the ongoing supply issues that delayed the materials being available to start installing the roof. Mr. Arrington indicated that Respondent had no intention of abandoning the project and was in contact with Complainant throughout the project regarding the issues. Mr. Arrington asserted that he advised Complainant that the old roof should not be removed until the materials were on site to ensure everything was correct. Mr. Arrington confirmed that the project was underway at the time of the hearing and would be completed in the next few days.

Administrative notice is taken of Respondent’s prior License record on January 27, 2022. Such prior License record reflects that Respondent’s License No. 264084 was first issued on April 27, 2010, and is active. Such prior License record also reflects that there were no other open complaints and two prior resolved/settled 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, while Respondent’s work on the project was delayed due to material availability issues, Respondent did not abandon the project. Accordingly, Complainant failed to establish that Respondent abandoned the contract and in violation of A.R.S. § 32-1154(A)(1). Furthermore, it cannot be said that Respondent failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) as Respondent had not yet completed the project at the time of the citation.

While Respondent failed to complete the project by the deadline provided in the written directive, Respondent was credible in its argument that its failure to do so was beyond its control in that the materials could not be obtained by the supplier in time to meet the deadline. It is also noted that both Complainant and Respondent agreed that the work would be completed in the days following the hearing. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar without valid justification in violation of A.R.S. § 32-1154(A)(22).

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, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

RECOMMENDED ORDER

It is recommended that, on or before thirty 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. At such a time that it presents a form contract that complies with A.R.S. § 32-1158(A), the Registrar shall close the complaint in Case Number 2021-04642.

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, January 27, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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