ALJDEC - Licensing
2022A-04007-CHC-ROC · Registrar of Contractors · 2023-03-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Van Thi Tran,
COMPLAINANT,
v.
L H C Construction, Inc.
License No. ROC 173191,
RESPONDENT.
Nos. 2022A-04032-CHC-ROC
2022A-04007-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 10, 2023
APPEARANCES: Complainant Van Thi Tran appeared on her own behalf. Francisco Valenzuela appeared as a witness for Complainant. Michael Fitzgerald appeared on behalf of Respondent L H C Construction, Inc. Jim Liesen appeared as a witness for Respondent. Arizona Registrar of Contractors Investigator Cliff Corlett appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
L H C Construction, Inc. (“Respondent”) is the holder of License No. 173191 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about November 11, 2019, Van Thi Tran (“Complainant”) and her husband, Gary Bacon, contracted with Respondent, a general contractor, for Respondent to construct a single family residence located at 1232 Bracero Lane. Thereafter, Complainant filed a Complaint against Respondent in Case Number 2022-04007. That Complaint was ultimately resolved to Complainant’s satisfaction.
On or about May 16, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work and noncompliance with the contract provisions with respect to Respondent’s scope of work at Complainant’s property located at 1230 Bracero Lane. Complainant contracted with Respondent for Respondent to remodel the exterior of this property, including the installation of 10,500 square feet of driveway, walls, grading, gates, excavation, fence removal, and a parking area with walls.
The Complaint concerning the 1230 Bracero Lane property was assigned Case Number 2022-04032.
The Registrar assigned Investigator Cliff Corlett to investigate the Complaint. After a June 13, 2022 Jobsite Inspection, Investigator Corlett issued a Written Directive to Respondent dated July 10, 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 or before August 10, 2022.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 – 1. EXPOSE / I.D. ALL PROPERTY PINS.
Investigator’s Observation: Lake Havasu City building department requires property corner pins to be at the time of the Final Building inspection.
RESPONDENT SHOULD BE RESPONSIBLE TO “EXPOSE” /I.D. ANY / ALL PROPERTY CORNER PINS THAT HIS ACTIVITIES DISTURBED.
Compliance Item: 2 – 2. DRIVEWAY NOT INSTALLED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED DRIVEWAY WORK.
Compliance Item: 3 – 3. POOL FENCING NOT COMPLETE.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED FENCE WORK.
Compliance Item: 4 – 4. DRIVEWAY GATE NOT INSTALLED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED DRIVEWAY GATE WORK.
Compliance Item: 5 – 5. BLOCK WALL CAPS NOT FINISHED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED BLOCK WALL WORK.
Compliance Item: 6 – 6. LIGHTING IN BLOCK WALLS NEEDS TO BE COMPLETED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED BLOCK WALL LIGHTING WORK.
Compliance Item: 7 – 7. ALL COLUMN LIGHTS NEEDS COMPLETION> THERE ARE 5.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED COLUMN WORK.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 8 – 8. TOILETS STAINED POSSIBLE REPLACED.
Investigator’s Observation: This item not discussed or viewed at onsite meeting.
Compliance Item: 9 – 9. HDMI CABLE TV NEEDS TO BE REINSTALLED.
Investigator’s Observation: Conflicting accounts of who and how HDMI cable was installed. Conflicting accounts of how the HDMI cable got partially pulled out of ceiling.
NO CONTRACTOR ACTION REQUIRED.
On July 20, 2022, Complainant filed addendum items of Complaint. Due to the additional of items of Complaint, Investigator Corlett conducted a second Jobsite Inspection on August 1, 2022, and issued a second Written Directive to Respondent on that same date with a due date of August 17, 2022, as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 – Pool gate does not close automatically. Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT ALL POOL GATES TO CLOSE AUTOMATICALLY.
Compliance Item: 2 – Dead bolts missing on all pool gates.
Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT INSTALL ALL POOL GATES TO LOCKS.
Compliance Item: 3 – Cracked block wall caused by installation of wrought iron.
Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT CRACKED BLOCK WALL.
Compliance Item: 4 – Wrought iron needs to be 4-inches to finish surface.
Investigator’s Observation: Pool enclosure code requires that any pool enclosure be constructed so that a 4-inch sphere may not pass through any opening,
RESPONDENT SHOULD CORRECT ANY POOL ENCLOSURE TO COMPLY WITH POOL ENCLOSURE CODE.
On August 31, 2022, after the expiration of the time period in which to perform corrective work, Investigator Corlett contacted Complainant via email in order to ascertain if all corrective work had been performed. Based on the information Complainant provided, Investigator Corlett scheduled a Compliance Inspection for September 30, 2022.
Investigator Corlett’s Compliance Inspection Notes state the following:
Allegations from July 10, 2022 Written Directive.
Compliance Item: 1 – 1. EXPOSE / I.D. ALL PROPERTY PINS.
Investigator’s Observation: Lake Havasu City building department requires property corner pins to be at the time of the Final Building inspection.
RESPONDENT SHOULD BE RESPONSIBLE TO “EXPOSE” /I.D. ANY / ALL PROPERTY CORNER PINS THAT HIS ACTIVITIES DISTURBED.
Compliance Inspection Findings:
Corrected. Respondent is in Compliance.
Compliance Item: 2 – 2. DRIVEWAY NOT INSTALLED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED DRIVEWAY WORK.
Compliance Inspection Findings:
No driveway installed. Respondent is not in Compliance.
Compliance Item: 3 – 3. POOL FENCING NOT COMPLETE.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED FENCE WORK.
Compliance Inspection Findings:
Corrected. Respondent is in Compliance.
Compliance Item: 4 – 4. DRIVEWAY GATE NOT INSTALLED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED DRIVEWAY GATE WORK.
Compliance Inspection Findings:
No driveway gate installed. Respondent is not in compliance.
Compliance Item: 5 – 5. BLOCK WALL CAPS NOT FINISHED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED BLOCK WALL WORK.
Compliance Inspection Findings:
Corrected. Respondent is in Compliance.
Compliance Item: 6 – 6. LIGHTING IN BLOCK WALLS NEEDS TO BE COMPLETED.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED BLOCK WALL LIGHTING WORK.
Compliance Inspection Findings:
Lighting not complete. Respondent is not in compliance.
Compliance Item: 7 – 7. ALL COLUMN LIGHTS NEEDS COMPLETION> THERE ARE 5.
Investigator’s Observation: RESPONDENT SHOULD PROPERLY COMPLETE ALL CONTRACTED COLUMN WORK.
Compliance Inspection Findings:
Lighting not complete. Respondent is not in compliance.
Allegations from August 1, 2022 Written Directive.
Compliance Item: 1 – Pool gate does not close automatically. Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT ALL POOL GATES TO CLOSE AUTOMATICALLY.
Compliance Inspection Findings:
Corrected. Respondent is in compliance.
Compliance Item: 2 – Dead bolts missing on all pool gates.
Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT INSTALL ALL POOL GATES TO LOCKS.
Compliance Inspection Findings:
Corrected. Respondent is in compliance.
Compliance Item: 3 – Cracked block wall caused by installation of wrought iron.
Investigator’s Observation: RESPONDENT AGREED TO PROPERLY CORRECT CRACKED BLOCK WALL.
Compliance Inspection Findings:
Corrected. Respondent is in compliance.
Compliance Item: 4 – Wrought iron needs to be 4-inches to finish surface.
Investigator’s Observation: Pool enclosure code requires that any pool enclosure be constructed so that a 4-inch sphere may not pass through any opening,
RESPONDENT SHOULD CORRECT ANY POOL ENCLOSURE TO COMPLY WITH POOL ENCLOSURE CODE.
Compliance Inspection Findings:
Pool fencing is not code compliant. Respondent is not in compliance.
Thereafter, Investigator Corlett forwarded the matter 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 Corlett testified consistently with his findings contained in the Jobsite Inspection Notes, Written Directives, and Compliance Inspection Notes. Investigator Corlett testified that during the onsite meetings, Respondent’s representative, Michael Fitzgerald, did not dispute that Respondent was contractually obligated to construct the driveway, and in fact, installed the drains in the driveway. Mr. Fitzgerald indicated to Investigator Corlett that the reason for Respondent’s failure to install the driveway was because costs have increased since the parties executed their contract. Mr. Fitzgerald told Investigator Corlett that he wanted to renegotiate the parties’ contract for the driveway installation due to price increases.
Complainant testified that she concurred with Investigator Corlett’s findings and testimony. Complainant asserted that Respondent did not perform the work it was contracted to perform and that she wants Respondent to install the driveway per the contract terms.
Francisco Valenzuela, owner of Xact Masonry, Respondent’s concrete subcontractor, testified that he submitted a bid to Respondent for the performance of all of the concrete work for the project. Mr. Valenzuela testified that Xact Masonry was hired to perform the work and did perform portions of the work. However, due to Respondent’s failure to pay Xact Masonry for the installation of the driveway, such work was not performed.
Mr. Fitzgerald testified that he believes Respondent’s workmanship was professional and that Respondent completed all corrective work required by the Registrar. Mr. Fitzgerald blamed the failure to install the driveway on the fact that the monies set aside for contingencies were spent, and therefore, there were no funds remaining to pay for the construction of the driveway due to the cost increases.
Jim Liesen, the draftsman for the project, testified on Respondent’s behalf. Mr. Liesen testified that the contract, estimates, and addendum to the contract have been “intermingled” and that they were poorly written. However, Respondent drafted all of the documents to which Mr. Liesen referred, and therefore, any deficiencies in those documents are solely attributable to Respondent. Respondent failed to execute any change orders and the parties’ contract does not contain an escalation clause.
Administrative notice is taken of Respondent’s prior License record on February 24, 2023. Such prior License record reflects that Respondent’s License No. 173191 was first issued on April 18, 2002, and is active. Such prior License record also reflects that there are three open complaints, zero resolved/settled complaints, and no discipline 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.”
In Case Number 2022-04032, Investigator Corlett found that Respondent’s work was not in conformity with the Registrar’s standards. Investigator Corlett determined the existence of workmanship issues concerning the work that was performed by Respondent and Respondent failed to complete its scope of work pursuant to its contract. Regarding Respondent’s assertion that it ceased performance due to a lack of funds, the evidence of record established that Respondent drafted the contract and the contract terms were devoid of an escalation clause. The credible, substantial, and probative evidence of record established that Respondent failed to complete its scope of work. 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 credible, substantial, and probative evidence of record established that Respondent did not complete the required corrective work following the Written Directive being issued. The Administrative Law Judge concludes based on the evidence of record that valid justification did not exist for Respondent’s failure to comply with the Written Directive. 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 in Case Number 2022-04032, the Registrar shall suspend Respondent’s License No. 173191 for a period of seven (7) 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 (30) 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.
It is further recommended that the Registrar shall close the Complaint filed in Case Number 2022-04007.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, March 1, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Van Thi Tran
[email redacted]
L H C Construction, Inc.
[email redacted]
[email redacted]
Cliff Corlett
[email redacted]
By: OAH Staff