ALJDEC decisions subject to certification as final

2022A-00714-CHC-ROC · Registrar of Contractors · 2022-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carolee Conant ,

COMPLAINANT

Penn-Tek LLC

License No. ROC 328761,

RESPONDENT

No. 2022A-00714-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 1, 2022, 9:00 A.M.

APPEARANCES: Complainant Carolee Conant appeared on her own behalf; Calen Pennington and Gregory Pennington, owners of Respondent, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Penn-Tek, LLC, is the holder of License Number 328761 issued by the Registrar of Contractors (Registrar).

2. On or about January 25, 2022, Carolee Conant (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with renovation work by Respondent at a residence in Hereford, Arizona (“project”). The Complaint reflected a contract amount of $69,856.00.

3. The Registrar performed an inspection of the project on March 2, 2022. Thereafter, the Registrar issued a Directive, dated March 2, 2022, requiring Respondent to correct various alleged deficiencies (“Directive items”) in Respondent’s work by April 5, 2022, as follows:

Compliance Item: 6 - Heat pump not connected (Our source of AC) here

since June.

Investigator’s Observation: Heat pump A/C is not functional.

Compliance Item: 7 - Hole in floor, a danger, not fixed.

Investigator’s Observation: This is part of the contract, fix soft spot in floor. Both parties agree it has not been completed.

Compliance Item: 8 - Window casing not replaced.

Investigator’s Observation: Windows trim on outside is not finished.

Compliance Item: 10 - Siding and trim cut wrong, installed badly.

Investigator’s Observation: Siding is not finished. Nails holes are

present where there is no backing. Siding is loose throughout outside walls.

Compliance Item: 11 - Cement load bearing wall cracking under weight.

Investigator’s Observation: There are numerous cracked blocks in the foundation. Top row of blocks is not installed correctly, blocks should be staggered over joints and not lined up.

Compliance Item: 12 - ITEM ADDED AT INSPECTION: Truss's tilting, not

bearing correctly.

Investigator’s Observation: Truss's are tilting and require gussets. This item is under review by local jurisdiction.

Compliance Item: 13 - Top Plates cut incorrectly, not spliced at 4 ft

intervals.

Investigator’s Observation: Top plates should have a 24" overlap/

There are numerous areas that are not overlapped correctly.

4. The Complainant added additional items to her Complaint and the Registrar performed another inspection of the project on April 21, 2022, and observed that work was still in progress.

5. After being informed no additional work had been performed for 30 days, the Registrar performed an additional inspection of the project on July 12, 2022. Thereafter, the Registrar issued a Directive, dated July 12, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by August 9, 2022, as follows:

Compliance Item: 3 - Window casing not replaced.

Investigator’s Observation: Verified: Window casings are missing

inside.

Compliance Item: 4 - Siding and trim cut wrong, installed badly.

Investigator’s Observation: Verified: Trim and siding are done poorly. Siding is loose and corners are unfinished. Siding bulges out at the bottom where it hits foundation. Trim around windows was cut short and filled in with small piece. Trim board across siding is loose, and broken in areas.

Additionally, email from Cochise County states framing inspections failed on 11-19-22 and subsequent inspections for 3/15/22 and 4/13/22 were cancelled.

Compliance Item: 6 - Truss's tilting, not bearing correctly.

Investigator’s Observation: Verified: Trusses are straight. Bearing

requirements are inspected by Cochise County Building and Safety. Email from Cochise County states framing inspections failed on 11-19-22 and subsequent inspections for 3/15/22 and 4/13/22 were cancelled.

Compliance Item: 7 - Top Plates cut incorrectly, not spliced at 4 ft intervals.

Investigator’s Observation: Verified: Respondent states Cochise County approved strapping at top plates which were installed at JSI. Email from Cochise County states framing inspections failed on 11-19-22 and subsequent inspections for 3/15/22 and 4/13/22 were cancelled.

Compliance Item: 8 - (Added at inspection with Respondents consent) Heat pump leaking.

Investigator’s Observation: Verified: Heat pump is leaking water from the South side of unit not through condensate line. Per Cochise County

Building Dept, no intermediate inspections have been scheduled.

Compliance Item: 9 - Item added at JSI: Floor vent in living room is incorrect.

Investigator’s Observation: Verified: A/C filter access is in the living

room. The access cover does not appear to be adequate for floor use. This item would be inspected at the Intermediate inspection from Cochise County.

Compliance Item: 10 - Work not completed as of January 18, 2022. Left

Nov, 19th 2021 Never returned. Failed inspection on Nov 19th 2021. Materials IE: shingles and insulation left out during monsoon.

Investigator’s Observation: Very little has been worked on since last

JSI. Complainant states work has stopped for over 30 days since closing original case. Almost an additional 30 days has passed since case reopening. This job appears to be abandoned. Respondent states "We got busy"

6. Several extensions were granted to Respondent to perform corrective action extending the time to August 31, 2022.

7. The Registrar performed a Compliance Inspection on September 16, 2022, and found the following items to be uncorrected:

Compliance Item: 6 - Heat pump not connected (Our source of AC) here

since June. ( Heat pump hooked up but not functioning correctly)

Compliance Item: 8 - Window casing not replaced. (Living room and bathroom inside casing)

Compliance Item: 10 - Siding and trim cut wrong, installed badly. (Corners

unfinished).

8. The Registrar performed a Pre-hearing Inspection on November 30, 2022, and found the heat pump to now be connected but that the other two items were still not corrected.

9. The Registrar thereafter issued a Citation to Respondent, dated September 20, 2022, for the alleged violation of the following:

a. A.R.S. §32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. §32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract;

c. A.R.S. §32-1154(A)(22) (failure to perform corrective action without valid justification).

10. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, dated October 27, 2022, that set a hearing for December 1, 2022, at 9:00 A.M.

11. At the December 1, 2022, hearing, Complainant Carolee Conant testified on her own behalf and presented the testimony of Christopher Conant. Calen Pennington testified on behalf of Respondent. Mike Springer, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s exhibit letters A - E.

12. The Investigator testified on behalf of the Registrar as to his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that Complainant advised him that the heat pump was working, but that the platform was not level. He indicated this was not related to any Directive item and therefore would have to be the subject of ta new Complaint. He stated the bedroom Interior window casing was corrected but the caulking still looked unfinished. He further testified the siding and trim on the outside were not completed.

13. Complainant Carolee Conant testified that the heat pump was not functional until July 2022. She stated the unit leaks and will still not go below 82 degrees during the peak of the day because it is only a 5-ton unit for only up to 2,000 square feet, and house is about 2,100 square feet with addition. She also testified that the thermostat was improperly placed and should have been moved. She stated the unit was not tested during the recent inspection. With regard to the other two Directive items, she stated the T1-11 was installed improperly and that the interior windows were improper and that casing in bedroom was replaced but that Respondent did not do finish work.

14. Christopher Conant, a licensed contractor outside of Arizona, testified on behalf of Complainant that he believed the project was “incompetent,” that the exterior trim should be removed and replaced, and that the corner boards were improperly installed.

15. Calen Pennington testified on behalf of Respondent that the Registrar tested the heat pump with a temperature gauge and that it was operating properly. He stated that the sloped pad for the heat pump was normal and would not cause any leaking if in fact there was leaking. He also testified that window casings were replaced and that Complainant did not complain about them. He further testified that Complainant accepted the T1-11 and trim so Respondent then went forward with painting and caulking.

16. The Tribunal requested that by December 5, 2022, Respondent submit a copy of the original contract between the parties as well as the new form contract that Respondent indicated it had already submitted to the Registrar. CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

12. Failure in any material respect to comply with this chapter.

...

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....

5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.]” under A.R.S. § 32-1154(A)(12) referenced in the Citation, the alleged lack of compliance claimed in this case is that the construction contract here between a contractor and the property owner shall contain in writing at least nine specific items including the following information:

4. The estimated date of completion of all work to be performed under the contract.

...

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....

Completion date

7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3) with regard to some of the remaining Directive items observed at the Compliance Inspection on September 16, 2022 . With regard to Compliance Item No. 6, there was not sufficient evidence presented by Complainant to show that the heat pump was not operational, particularly when the Investigator testified that it was confirmed to him that it was operational. With regard to Compliance Item No. 8, the evidence presented showed the inside caulking was not finished properly. With regard to Compliance Item No. 10, the evidence showed the siding and trim were deficient.

8. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A). Respondent submitted a new form contract on December 5, 2022, which is in substantial compliance although it does not contain a line for the contractor’s signature and the license number does not match the license number herein.

9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent did not complete all the Directive items during the Directive period or any extensions given nor was there any evidence presented of a valid justification for not completing all corrective action.

10. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Compliance Item Nos. 8 and 10, and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Penn-Tek, LLC’s License Number 328761 is suspended for two days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before thirty days from the effective date of this Order.

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 the outstanding prior civil penalty.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, December 27, 2022.

/s/ Roger Geddes______

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Carolee Conant

[email redacted]

Penn-Tek LLC

[email redacted]

-54864001

001

-137160-45720000

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000