ALJDEC decisions subject to certification as final
2021A-06536-CHC-ROC · Registrar of Contractors · 2022-11-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Debra Keller,
COMPLAINANT
v.
Castle Constructions, LLC
License No. ROC 311027,
RESPONDENT
No. 2021A-06536-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 25, 2022
APPEARANCES: Complainant Debra Keller appeared on her own behalf. Clayton Abernathy, Owner, and Daniel W. Boveington Jr., Qualifying Party, appeared on behalf of Respondent Castle Constructions, LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Castle Constructions, LLC (Respondent) is the holder of License No. 311027 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 29, 2020, Debra Keller (Complainant) entered into a contract with Respondent for an addition to her home. Complainant paid Respondent a total of $152,000.00 towards the total project cost of $162,633.82.
Prior to December 10, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
On or about December 13, 2021, the Registrar issued a Warning Letter to Respondent regarding its failure to provide Complainant with a contract that included the minimum elements as set forth in A.R.S. § 32-1158(A).
On or about March 2, 2022, the Registrar issued a Warning Letter to Respondent indicating that it may have operated beyond the scope of its KB-1 Dual Building Contractor license in violation of A.R.S. § 32-1154(A)(16).
The Registrar assigned the complaint to Investigator Arlo Houston. After a jobsite inspection, Investigator Houston issued a written directive to Respondent that provided, in pertinent 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 March 21, 2022.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contract documents to include the nine terms required by A.R.S. § 32-1158(A).
Compliance Item: 1 – “Kitchen cabinets not hung correctly - screw hanging out of wall and damage inside cabinets from screws that did not go in properly (multiple occurances);”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-splintering of upper corner cabinet interior
-exposed fasteners
-several fasteners not completely driven (under driven)
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.
Compliance Item: 3 – “2 cabinet doors and 2 cabinet drawers damaged during installation (new door/drawer faces needed). hardware holes drilled incorrectly and now hardware loose;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-right side upper cabinet door above sink: hole filled and poorly finished
-right side drawer: hole and/or missing screw
-right side lower cabinet to right of range: gap at front of handle and splintering on back at head of fastener
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.
. . . .
Compliance Item: 6 - “kitchen backsplash grout coming out already – done incorrectly/not sealed properly;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-one area at right side of backsplash/end of counter with void in grout
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.
Compliance Item: 11 - “Paint/stain stains on new patio from poor workmanship -- they didn’t use a dropcloth when painting;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-paint and/or wood stain on rear patio concrete
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.
. . . .
Compliance Item: 17 - “interior framing has 3-4 nails popping thru drywall.
needs repair;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-several nail pops: by back door; under thermostat; next to hallway door
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.
Compliance Item: 18 - “exterior house overhang on west side framing not
done properly.. boards twisting and nails visible. boards not secure so they are starting to twist/come apart;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-exposed fasteners (shiners) on West side eave
-fascia misaligned at area of exposed fasteners (shiners)
-decking splintering/poorly cut/poorly finished around conduit
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.
. . . .
Compliance Item: 24 - “interior door paint chipping and not painted/installed correctly;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-paint chipped/peeled on doors and/or jambs
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.
. . . .
Compliance Item: 33 - “Tile grout in office, master bedroom, kitchen and family area installed and sealed incorrectly.”
Investigator’s Observation: Verified. The complainant said there were many areas of tiles with sealant remaining on the tiles which the respondent said they were willing to remedy. Upon inspection at this JSI I observed for:
-many areas of sealant/residue remaining on tiles
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.
. . . .
Compliance Item: 38 - “outside patio door trim not mitred - overlap of edges on trim because they didn’t use mitre saw to trim to small areas/pieces;”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-one side of trim mitered and one side of trim was square cut/butt jointed
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.
. . . .
Compliance Item: 42 - “Kitchen drawer cabinet (next to the dishwasher on end) has shims visible/cabinet not level w/floor.”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-shim ends visible under toe kick/cabinet base
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.
Compliance Item: 43 - “Outside, on the side patio, the southernmost column has a metal base that is not secure (the north and middle column bases are secured/don’t move)”
Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:
-post not bearing/resting on post base
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 performed corrective work on the project. After the deadline in the directive expired, the Registrar was notified that some of the corrective work had been performed.
On or about August 9, 2022, Investigator Steve Hammons performed a compliance jobsite inspection. At that time, Investigator Hammons determined those items noted above were not in compliance with the Registrar’s workmanship standards.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).
Investigator Hammons testified as to his observations during the compliance jobsite inspection. .
Complainant testified that she paid all but $10,000.00 towards the contract. Complainant indicated she afforded Respondent the opportunity to conduct the corrective work as necessary.
Respondent offered the testimony of Mr. Boveington, Mr. Abernathy, and Peter Toone, Assistant. In their testimony, the witnesses stated that supply issues occurred with the cabinets that prevented Respondent’s completion of the corrective work. The replacement cabinets, when received, had an additional hinge that was not on the existing cabinets. To ensure the cabinets were the same, Respondent was undertaking adding an extra hinge to the existing cabinets. Respondent referenced a possible denial of access, but could not provide any details or evidence of times when Respondent sought access to the property and were denied the same.
Administrative notice is taken of Respondent’s prior License record on November 14, 2022. Such prior License record reflects that Respondent’s License No. 311027 was first issued on January 12, 2017, and is active. Such prior License record also reflects that there were two open complaints and no 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 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 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 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. 311027 for a period of three 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)(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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, November 14, 2022.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically or by mail to:
Jeffrey Fleetham, Director
Registrar of Contractors
Steve Hammons
[email redacted]
Castle Constructions, LLC
[email redacted]
Debra Keller
[email redacted]
By-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000 Miranda Alvarez
Legal Secretary