ALJDEC decisions subject to certification as final

2021A-05667-CHC-ROC · Registrar of Contractors · 2022-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Olivia Whalen,

COMPLAINANT

CDJ Construction, LLC

License No. ROC 324581,

RESPONDENT

No. 2021A-05667-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 14, 2022

APPEARANCES: Complainant Olivia Whalen appeared on her own behalf. Luis Miranda appeared on behalf of Respondent CDJ Construction, LLC. Arizona Registrar of Contractors Investigator Sheldon White appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

CDJ Construction, LLC (“Respondent”) is the holder of License No. 324581 issued by the Arizona Registrar of Contractors (“Registrar”). Luis Miranda Ascencio is Respondent’s qualifying party and member.

On or about November 5, 2021, the Registrar received a Complaint against Respondent from Olivia Whalen (“Complainant”) alleging poor work with respect to a roofing project. Complainant’s roof was in need of replacement due to hail/wind damage, and Complainant was paying for the roof replacement with insurance proceeds from her insurance claim.

The Registrar assigned the Complaint to Investigator Sheldon White. After a November 19, 2021 jobsite inspection, Investigator White issued a Written Directive to Respondent dated November 22, 2021, 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 12-10-2021 .

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

Compliance Item: 1 - Complaint was written in a narrative. Investigator wrote complaint items from narrative.

CDJ did not give Complainant a contract.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that the complaint item is verified.

The Respondent did not attend the JSI. I have no evidence that there was ever a contract written or signed by Complainant & Respondent.

Compliance Item: 4 - The Arizona room flat roof has not been installed.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that roof on the Arizona room has not been completed.

Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - The garage required new plywood were not installed.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that no deficiency demonstrated or observed at time of inspection. This complaint item is unverified, as evidence presented does not support a violation of ARS 32-1154(a). No action required by the Respondent

Compliance Item: 3 - The garage is showing many holes through the ceiling due to nailing using the wrong roofing nails and there are serval existing holes in garage ceiling

Compliance Item: 5 - CDJ has been sending people over that have no idea

how to install rolled roofing and he is sending over unlicensed people that are not employees of his firm.

Investigator’s Observation: No deficiency demonstrated or observed at time of inspection Evidence presented does not support a violation of ARS 32-1154(a) Inspector has no firsthand knowledge

All errors in original.

On November 19, 2021, Investigator White issued a Warning Letter to Respondent advising that it appeared that Respondent violated the Registrar’s requirements for written contracts.

After the expiration of the timeframe set forth in the Written Directive in which Respondent was to complete the required corrective work, Complainant informed Investigator White that Respondent had not performed any corrective work. Consequently, Investigator White did not conduct a Compliance Inspection.

Investigator White 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)(1), 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. § 32-1158.02, and A.R.S. § 32-1154(A)(22).

Investigator White testified consistently with the findings contained in his Jobsite Inspection Notes and the Written Directive. Investigator White testified that he attempted to contact Respondent by phone after Respondent did not attend the jobsite inspection, however, Respondent did not return Investigator White’s phone calls. Investigator White further testified that the parties did not have a written contract for the project, and therefore, Respondent was in violation of the Registrar’s requirements for a written contract. Investigator White testified that Complainant paid Respondent $3,000.00 via check written to Respondent. Investigator White testified that Respondent’s acceptance of such payment from Complainant was evidence of the parties’ contract. Investigator White testified that Respondent abandoned the project because the roof was not completed. Investigator White also testified regarding corollary damage caused by the incomplete roof.

Complainant testified that Luis Miranda, Respondent’s owner, is her neighbor. Complainant testified that she entered into a verbal contract with Respondent to replace the roof on her home. Complainant testified that in September 2021, Respondent sent workers to remove the existing roof, and that Respondent was supposed to replace “pieces of wood,” however, the wood was not replaced. Instead, Respondent installed shingles over the course of two to three days. Complainant testified that Mr. Miranda was “supposed to supervise.” Complainant asserted that Respondent “lied” about replacing the wood under the shingles, and that she called Mr. Miranda multiple times to express her concern. Complainant testified that she stopped the work due to her concerns regarding the competence or lack thereof of the various workers Respondent sent to perform the work. Complainant explained that she filed the Complaint because she “has doubts that [the workers] were doing the right thing.”

Mr. Miranda testified that Respondent did not contract with Complainant, and that he met with her after business hours and told her that Respondent could not perform the work because Respondent did not have the time for the project. Mr. Miranda testified that Complainant asked him if he knew of anyone else who could do the work, and he told her he would contact his friends who could perform the work as a “side job.” Mr. Miranda testified that he only “sent guys” to Complainant’s house to perform the work as “a favor” because Complainant is his neighbor and a friend of his wife. Mr. Miranda testified that “the guys tore off the roof” and that Complainant asked them to stop work. Mr. Miranda testified that after Complainant requested that the original “guys” stop work because she believed they were improperly performing the work, he sent “another guy to try to finish,” however, Complainant was not home each time the individual went to the home to perform work. Mr. Miranda testified that the individuals who worked on Complainant’s roof did not work for Respondent, but rather they were friends that worked for other roofing contractors, were not licensed contractors, and performed this work as a side job. Mr. Miranda testified that he had a “hard time finding other guys to do the job.”

Mr. Miranda explained that Complainant gave him a check to purchase materials for the project because he was able to purchase the materials from his supplier. Mr. Miranda deposited the check into Respondent’s business account. Mr. Miranda testified that the payment was for materials only, and that he purchased the materials for his friends that were performing the work because they do not have an account with the materials supplier.

Administrative notice is taken of Respondent’s prior License record on March 16, 2022. Such prior License record reflects that Respondent’s License No. 324581 was first issued on May 19, 2019, and is active. Such prior License record also reflects that there is the instant open complaint, one disciplined complaint, and one resolved/settled complaint 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 credible evidence of record, including the fact that Complainant paid Respondent via check that was deposited into Respondent’s business account, and the fact that Respondent arranged for the work to be performed at Complainant’s home, established that the parties entered into a verbal contract, and that Respondent abandoned that contract without legal excuse. Therefore, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

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 did not provide a written contract for the project to Complainant. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute regarding requirements for contracts, in violation of A.R.S. § 32-1154(A)(12).

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. 324581 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 sample contracts to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A), as well as the requirements of A.R.S. § 32-1158.02. If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) and A.R.S. § 32-1158.02 within thirty (30) 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.

-54864001

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-137160-45720000Done this day, March 21, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000