ALJDEC decisions subject to certification as final
2022A-05288-CHC-ROC · Registrar of Contractors · 2022-12-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
David Wilfred Berry
COMPLAINANT.
v.
Skylight Construction LLC
License No. ROC 327413,
RESPONDENT.
No. 2022A-05288-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: November 14, 2022
APPEARANCES: Complainant David Wilfred Berry appeared on behalf of himself (Complainant). Marco Holguin appeared on behalf of Respondent Skylight Construction, LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
1. According to the public website of the Arizona Registrar of Contractors (Registrar or ROC), the ROC issued General Dual KB-2 Dual Residential and Small Commercial license number 327413 to Respondent on January 16, 2020.
2. Marco Holguin is Respondent’s qualifying party.
3. Respondent constructed a home located at 13074 E. Wrangler Road, Prescott, Arizona 86315 (home). Respondent was the general contractor for the construction.
4. At all times relevant to his matter, Complainant owned the home.
5. Respondent completed construction of the home on June 7, 2022.
6. On or about July 7, 2022, Complainant filed a complaint with the ROC alleging poor workmanship on the part of Respondent.
7. On August 19, 2022, ROC Investigator Chris Allison conducted a job-site inspection.
8. On August 24, 2022, the ROC issued a Directive to Respondent that provided, in relevant part, 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 September 11, 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 reasons, 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:
Compliance Item: 1 - Roof overhang over master bedroom not properly secured
Investigator’s Observation: Overhang is floating and not securely attached the home. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 2 - Missing stucco and painting at rear gable
Investigator’s Observation: Stucco and paint were missing on rear gable. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 3 - Painting of roof gable incomplete
Investigator’s Observation: Painting was incomplete. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 4 - Open space between gable and roof at front of house
Investigator’s Observation: There is a gap at the bird blocks. This will allow pest entry. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 5 - Soffits of patio roof left open
Investigator’s Observation: There is a gap at the bird blocks. This will allow pest entry. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 7 - Threshold from master bedroom to patio access not finished and door handle locking mechanism installed backwards (key on inside - turn knob on outside
Investigator’s Observation: Threshold is missing screws. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 8 - Barn door between master bed and bath. Used exterior door with multiple fixtures and 4 hinge cutouts installed.
Investigator’s Observation: Incorrect style of door was used. Respondent has agreed to replace.
Respondent shall correct in an appropriate manner.
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.
Compliance Item: 9 - Caulking incomplete in all 3 shower stalls
Investigator’s Observation: There is no caulking on the top of the shower wall tile. This will allow moisture behind the tile. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 13 - Electrical junction box in attic not covered per code
Investigator’s Observation: Junction box is missing cover plate. Respondent shall correct in an appropriate manner.
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.
Compliance Item: 15 - Closet doors in two bedrooms not installed and baseboard unfinished
Investigator’s Observation: Doors were installed in one bedroom. However, the installation was not complete. No doors installed in the other bedroom. Baseboards were not completed. Respondent shall correct in an appropriate manner.
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.
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9. During the timeframe for compliance under the Directive, Complainant corrected complaint items 5, 7, and 9. Complainant corrected those items, in part, to prevent pest infestation. Respondent’s employees arrived at Complainant’s home during the timeframe for compliance under the Directive, however, Complainant notified Respondent’s employees that the door was repaired.
10. Respondent did not correct the items listed in the Directive by September 11, 2022.
11. On September 13, 2022, the ROC issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. A hearing was held on November 14, 2022.
14. At hearing, Complainant testified on behalf of himself. Mr. Holguin testified on behalf of Respondent. Investigator Allison testified regarding his investigation of the complaint and the issuance of the Directive.
15. It is undisputed that all of the items listed in the Directive have been corrected.
16. Investigator Allison testified consistently with the findings in his job-site inspection notes. Investigator Allison provided credible testimony that Respondent performed poor work when it constructed Complainant’s home.
17. Administrative notice is taken of Respondent’s prior License record on December 2, 2022. Such prior License record reflects that Respondent’s license number 327413 is active. Such prior License record also reflects that there were no other open or prior complaints filed against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction. See A.R.S. section 32-1101 et seq.
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 a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. R4-9-118.
5. The preponderance of the evidence shows that Respondent did not
build the home in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence does not show that Respondent
violated A.R.S. § 32-1154(A)(22) with regard to complaint items 5, 7, and 9. Absent an opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written Directive. The evidence presented at hearing shows that Complainant repaired complaint items 5, 7, and 9 during the time period allotted to Respondent to perform corrective work.
7. The preponderance of the evidence shows that Respondent failed to correct complaint items 1, 2, 3, 4, 8, 13, and 15, by September 11, 2022, without valid justification. However, as of the date of the hearing, Respondent corrected all of the remaining Directive items. Therefore, it is not appropriate in this case to impose discipline or a civil penalty.
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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 is forty days after the date of that certification.
Done this day, December 2, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically or by mail to:
David Wilfred Berry
13074 E. Wrangler Road
Prescott Valley, AZ 86315
[email redacted]
Skylight Construction, LLC
7120 E. Lobo Way
Prescott Valley, AZ 86314
[email redacted]
Jeffrey Fleetham
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
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-137160-45720000By Miranda Alvarez
Legal Secretary