ALJDEC decisions subject to certification as final
2022A-01699-CHC-ROC · Registrar of Contractors · 2022-08-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Victoria Bartoli,
COMPLAINANT,
v.
Emerald Bay Construction and Development, Inc.
License No. ROC 230666,
RESPONDENT.
No. 2022A-01699-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 1, 2022
APPEARANCES: Complainant James Bartoli represented himself. Jim Aten Respondent Emerald Bay Construction and Development, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Emerald Bay Construction and Development, Inc. (Emerald Bay) holds license number 230666 issued by the Arizona Registrar of Contractors (ROC).
2. Jim Aten is the qualifying party for Respondent.
3. On or about January 1, 2021, Complainant and Respondent entered into a contract wherein Respondent would build a new home for Complainant located at 1024 Gleneagles Drive, Lake Havasu City, AZ 86406 (the home).
4. James Bartoli is an owner of the home.
5. On or about January 4, 2021, Respondent started work.
6. On or about February 25, 2022 Respondent stopped work.
7. On March 14, 2021, ROC Investigator Cliff Corlett conducted a job-site inspection.
8. On March 31, 2022, the ROC issued the following DIRECTIVE to Respondent:
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 or before April 31, 2022.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Allegation: 2 - Garage concrete, rear section re poured twice. Concrete not sloped properly, uneven sections. Investigator’s Observation: The WSLC States: Ponding or standing water on garages, patios, stoops, carports, walks and driveway concrete surfaces. Water should drain. Standing water exceeding 3/32" is unacceptable. Standing water exceeding 3/16" on driveways is unacceptable. Flood, wait 30 minutes and then check for ponding. Contractor should make necessary repairs.
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.
Complaint Allegation: 3 - Garage concrete (all) not level-Section that was re-poured-Joint cuts have sections that are 1/2" higher causing a dangerous 'trip' hazard. Contractor has made 2 attempts to correct. Not successful after 2 attempts to correct.
Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states: Different elevations between slabs. Vertical displacement between two adjacent slabs should not be a trip hazard. Contractor should make necessary repairs. Two (2) concrete panels replaced at the rear of the RV garage have raised to the point they are trip hazards. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.
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.
Complaint Allegation: 4 - Garage concrete - areas have gouges and missing material (concrete).
Investigator’s Observation: The WSLC States: Corners chipped or broken during construction. Chipped or broken corners in concrete may occur during construction. These chips and broken corners are unacceptable at move-in. Contractor should make necessary repairs.
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.
Complaint Allegation: 6 - Contractor dug hole for the pool without signed contract and charged for it. We did not authorize or sign a contract for pool dig. Contractor demanded $2500 for pool dig prior to releasing occupancy permit. We asked for contract verbally and in writing a total of 8 times. Investigator’s Observation: Respondent agreed to return Complainant $2,500.00.
8. Respondent failed to appropriately correct the items listed in the DIRECTIVE by April 31, 2022.
9. Investigator Corlett conducted compliance and pre-hearing job-site inspections. Investigator Corlett found that Respondent had not appropriately corrected the DIRECTIVE items.
10. On May 19, 2022, the ROC issued a Citation against Respondent alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A) (3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).
11. Respondent filed a timely answer to the Citation.
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. A hearing was held on August 1, 2022.
14. Investigator Corlett testified regarding his investigation of the complaint and the issuance of the DIRECTIVE. Mr. Bartoli testified on behalf of himself. Mr. Aten testified on behalf of Respondent.
15. Mr. Bartoli explained that Respondent performed poor work in the construction of his home. Mr. Bartoli explained that he received an estimate to perform the corrective work in the amount of $1,300.00. Mr. Aten did not dispute that Respondent performed poor work. Mr. Aten stated in his opening statement that the poor work was performed by Respondent’s subcontractor.
16. Administrative notice is taken of Respondent’s prior License record as
reflected on the ROC’s public website on August 22. 2022. Such prior License record reflects that Respondent’s License No. ROC 230666 was issued on March 10, 2007, and is currently active. Such prior License record shows that there is one open complaint against Respondent’s license. Such prior License record shows that two complaints against Respondent’s license were closed as the result of a settlement, or were withdrawn by complainant after the issuance of a corrective work order or formal citation.
CONCLUSIONS OF LAW
The ROC has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the ROC to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the ROC, 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).
The Administrative Law Judge may consider ROC’s administrative
record. See Ariz. Admin. Code § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work did not comply with the ROC’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of A.R.S. § 32-1154(A)(3).
5. The preponderance of the evidence shows that Respondent failed to comply with the DIRECTIVE without valid justification, which is a 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 in this matter, License No. ROC 230666 of Emerald Bay Construction and Development, Inc. shall be suspended for three days.
It is further recommended that the ROC require Respondent to pay the sum of 250 .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 ROC’s Order, the ROC 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.
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 days from the date of that certification.
Done this day, August 22, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
ROC of Contractors
By Miranda Alvarez
Legal Secretary