ALJDEC decisions subject to certification as final

2022A-01951-CHC-ROC · Registrar of Contractors · 2022-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeanna Pignatiello,

COMPLAINANT

Plum Custom Landscapes and

Design, LLC

License No. ROC 278150,

RESPONDENT

No. 2022A-01951-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 1, 2022

APPEARANCES: Complainant Jeanna Pignatiello appeared on her own behalf with her husband, Michael Slowik. Joseph Galea appeared on behalf of Respondent Plum Custom Landscapes and Design, LLC. Arizona Registrar of Contractors Investigator Wes Ellington appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Plum Custom Landscapes and Design, LLC (“Respondent”) is the holder of License No. 278150 issued by the Arizona Registrar of Contractors (“Registrar”). Joseph Galea is Respondent’s Qualifying Party and Member.

On or about August 6, 2020, Jeanna Pignatiello (“Complainant”) contracted with Respondent for a backyard remodel which included the construction of an outdoor fireplace.

On or about March 9, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Wes Ellington. After an April 14, 2022 jobsite inspection, at which both parties were present, Investigator Ellington issued a Written Directive to Respondent, dated April 20, 2022 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 May 13, 2022.

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

Complaint Items: Fireplace was not built to minimum requirements of the International Building Code (IRC), contractor did not obtain required permits or inspections.

Per Michael Williams, Building Safety Division Manager for the Town of Queen Creek - Chimney termination requirements of Section R1003.9 requires the chimney to terminate at least 2 feet above any portion of the building within 10 feet and not less than 3 ft above the point where it penetrates the roof. As build it does not meet this requirement.

The flue does not meet the requirements of Section R1003.10 and is not configured in such a way as to preclude fire or hot gases from impinging upon the residential structure.

The wall thickness of the masonry chimney is not at least 4 inches as IRC, Section R1003.10 requires.

Fireplace was constructed without a foundation as required by IRC.

Investigator’s Observation: All above listed issues were verified. The Respondent will obtain the required building permit(s) through the town of Queen Creek and follow all requirements of the permit(s) to include the structure and electric supplied to the fireplace using an appropriately licensed electrical subcontractor. All code violations will be corrected through the design approval process and subsequent inspections by the city.

All errors in original.

Investigator Ellington issued two Warning Letters to Respondent - one for failing to obtain proper permits, and one for operating outside the scope of its licensure as Respondent performed electrical work for which it is not licensed.

After the expiration of the Written Directive, Investigator Ellington ascertained from Complainant that Respondent did not perform any of the required corrective work pursuant to the Written Directive. Thereafter, Investigator Ellington 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)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Investigator Ellington testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Ellington testified that Respondent failed to obtain the required permit for the project, and further testified regarding photographs taken during the jobsite inspection. Investigator Ellington testified that Photographs 3 and 4 depict the fireplace being too close to the home and termination below the roof line. Regarding Photograph 5, Investigator Ellington explained that the flue is the incorrect thickness. Photograph 6 depicts a sand foundation for the structure.

Complainant questioned Investigator Ellington regarding Respondent’s lack of communication concerning the Written Directive. Investigator Ellington testified that on May 12, 2022, the day before the expiration of the Written Directive, Mr. Galea emailed him to advise that he had asked Complainant if he could perform the corrective work on the Saturday after the deadline, however, Complainant would not allow Respondent to perform work on that date. Investigator Ellington testified that Respondent could not perform the work without a permit, and further, Complainant was within her rights to refuse to allow Respondent to perform work after the deadline in the Written Directive expired.

Complainant testified that she filed the instant Complaint after she discovered that Respondent failed to obtain the permit for the project and that Respondent performed electrical work for which it was not licensed to perform, and was informed by the fire marshal of the town of Queen Creek that the structure does not meet building code requirements.

Complainant further testified that prior to May 12, 2022, one day before the Written Directive deadline, she had no contact from Respondent, and that she is confident Respondent never attempted to access the property during the Written Directive period because she and her husband work from home and they have security cameras. Therefore, they would have been aware had Respondent attempted to access the property. Complainant testified that Respondent “showed up after the deadline and at no time did they have any indication” that Respondent had obtained the required permit.

Mr. Galea testified that the materials needed for the corrective work were on backorder, and consequently, he could not make the repairs by the deadline date, however, Mr. Galea also testified that he “confused the deadline date” in the Written Directive. Mr. Galea questioned the town of Queen Creek’s fire marshal’s assessment asserting that the fire marshal did not inspect the project. Mr. Galea also asserted that the footings for the fireplace were installed according to the manufacturer specifications and the International Building Code. Mr. Galea acknowledged that Respondent has not obtained the permit for the project and “knows it did things wrong,” yet asserted that Respondent “made a good faith effort to make corrections.” Mr. Galea explained that he experienced two deaths in his family, is going through a divorce, and is a single parent, running a business, and relies on his license and reputation.

Administrative notice is taken of Respondent’s prior License record on August 3, 2022. Such prior License record reflects that Respondent’s License No. 278150 was first issued on May 3, 2012, and is active. Such prior License record also reflects that there is only the instant open complaint, one disciplined complaint, and zero resolved/settled complaints 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 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 professional and 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 required corrective work following the Written Directive being issued and acknowledged that the permit has not been obtained. Respondent failed to establish, as an affirmative defense, valid justification for such failure. 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. 278150 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.

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.

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-137160-45720000Done this day, August 3, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary