ALJDEC decisions subject to certification as final

2022A-00245-CHC-ROC · Registrar of Contractors · 2022-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Eric Komenda,

COMPLAINANT

R. CHRISTOPHER LLC,

License No. ROC 332506,

RESPONDENT

No. 2022A-00245-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 1, 2022

APPEARANCES: Complainant Eric Komenda appeared on his own behalf. Ronald Christopher, Owner and Qualifying Party, appeared on behalf of Respondent R. Christopher LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

R. Christopher LLC (Respondent) is the holder of License No. 332506 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 14, 2021, Eric Komenda (Complainant) entered into a contract to purchase a property from Scott Gazda. During the home inspection report, issues with the existing patio cover/balcony were identified and Mr. Gazda agreed to have the issues corrected prior to closing.

On or about November 17, 2021, Mr. Gazda entered into a contract with Respondent with the following scope of work:

Demolition of existing back patio-cover with rotting wood

Build new Patio Cover with a second floor balcony and railing

Correct the pitch away from the house

Seal rafter connections to the main structure

Cover balcony floor with roll roofing materials.

The contract also noted under the materials section that, “[a]ll necessary materials and supplies for structural build is included.”

On or about January 10, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, 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 March 21, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: Asphalt rolled roofing is bubbling ;

Investigator’s Observation: Rolled roofing is poorly installed, uneven with ridges (bubbling) throughout the deck. Respondent should correct by appropriate methods.

. . . .

Compliance Item 2: No flashing was installed between deck and the house (per the requirement in the home inspection);

Investigator’s Observation: Flashing has not been installed as required at deck to wall/floor assembly of wood frame construction. IRC 4703.8. Respondent should correct by appropriate methods.

. . . .

Compliance Item 3: Deck planks not installed under rolled roofing. Per home sale contract, the deck needed to be replaced "like for like". The previous deck was not a rolled roof, but a deck with wood planks;

Investigator’s Observation: Contract calls, in part, for “demolition of existing back patio-cover with rotting wood” and “Build new Patio Cover with a second floor balcony and railing”. Methods/materials are not identified. The demolition of an existing patio cover and building of a new patio cover, with a second floor balcony and railing requires permitting and inspection by the local building authority. Respondent should comply with all requirements of the local building authority. Respondent should provide copies of passed inspection(s) to the Registrar.

Following the issuance of the written directive, Respondent reportedly attempted to secure a permit for the project, but a permit was not issued. After the deadline in the directive expired, Investigator Melton 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)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

On or about May 4, 2022, Respondent submitted an answer to the citation. In the answer, Mr. Christopher acknowledged that a permit had not been issued on the project and he was “trying to rectify this.” Mr. Christopher stated that he had applied for a permit during the first week of March 2022 and it “took several weeks to be approved,” but Investigator Melton “refused” the permit because it needed to cover the entire scope of the work Respondent performed. Mr. Christopher asserted that Respondent had applied for a new permit that covered the entire scope and that the application was pending.

Investigator Melton testified that on the first permit, Respondent did not disclose the scope of the work performed because Respondent had indicated that the project was just a minor repair of an existing structure, not a rebuild of the patio. Investigator Melton stated that as of the morning of the hearing, the City of Phoenix did not have any pending permit applications related to this project.

Complainant testified that the prior owner contracted with Respondent to perform the work identified in the contract. Complainant stated that Respondent did not make any attempts to perform work on the project after the written directive was issued.

Mr. Christopher testified that he did not contract with Complainant and all the work performed was at the direction of Mr. Gadza. Mr. Christopher denied that Respondent built a new structure and only replaced rotten materials of the existing structure. Mr. Christopher eventually admitted that, as he sat in the hearing, he understood that the project required a permit to be issued.

Administrative notice is taken of Respondent’s prior License record on August 9, 2022. Such prior License record reflects that Respondent’s License No. 332506 was first issued on March 8, 2021, and was active Such prior License record also reflects that there were no other open or 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 did not obtain a permit at any point during the project and, thus, failed to complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).

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(b).

The evidence established that Respondent did not attempt to 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. 332506 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

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-137160-45720000Done this day, August 9, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000