ALJDEC decisions subject to certification as final
2022A-05560-CHC-ROC · Registrar of Contractors · 2023-01-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ryen Yokom
COMPLAINANT,
v.
D R H Tucson Construction, Inc.
License No. ROC 124600,
RESPONDENT,
No. 2022A-05560-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 15, 2022
APPEARANCES: Complainant Ryen Yokom appeared on behalf of himself. Jason Boblick, Esq. appeared on behalf of Respondent D R H Tucson Construction, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On March 8, 2021, Respondent agreed to build a new home for Complainant.
2. On or about November 3, 2021, Complainant moved into the home.
3. The Arizona Registrar of Contractors (ROC or Registrar) received a complaint from Complainant alleging poor work on the part of Respondent.
4. On July 11, 2022, the ROC assigned the complaint to one of its investigators, Brandon Smith.
5. On August 10, 2022, Investigator Smith conducted a job-site inspection.
6. Complainant and a representative for Respondent were present at the job-site inspection. The parties agreed that it would take more time than the standard 15 days to complete the repairs. As a result, Investigator Smith extended the timeframe for compliance under the Directive to 28 days.
7. On August 10, 2022, the ROC issued a Directive to Respondent that provided as follows:
Dear 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 September 7, 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:
Compliance Item: 1 - Light switches in kitchen and garage are the incorrect type (don't match the rest of the house);
Investigator’s Observation: VERIFIED: The light switch in the kitchen and the garage are different in design from the switches in the rest of the house.
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 - #1 bathroom lockset doesn't align with the strike plate;
Investigator’s Observation: VERIFIED: Strike plate is not mortised into jam correctly. It appeared to not be centered to the latch with enough tolerance to allow for humidity variations in the jam and door.
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 - Hand towel holders in both hall bathrooms require replacement (in wrong place and pulled out of the wall);
Investigator’s Observation: VERIFIED: Hand Towel Holder in Bathroom #2, at some point prior to inspection, pulled out of the wall. It was refashioned by complainant, damage to wall still showing.
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 - 2 each dead plants in the front yard (flowering type)
Investigator’s Observation: VERIFIED- I didn't observe dead plants, I did observe drip irrigation lines exposed, with no plants to water.
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 - Construction debris under the carpet in the master bedroom;
Investigator’s Observation: VERIFIED- In the MB, I could feel an imperfection under the carpet in two locations
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 - Multiple kitchen cabinets are defective and need replaced;
Investigator’s Observation: VERIFIED: I observed multiple blemishes on cabinet doors, multiple doors warped, and damage to the cabinet box of the cabinet above the microwave.
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 - Both screen doors missing from back porch sliding glass door;
Investigator’s Observation: VERIFIED: I observed that both screens were missing during the inspection.
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 - Crack in the tile floor in the great room (runs thru 10+ tiles);
Investigator’s Observation: VERIFIED: I observed a large, approximately 40" long crack starting under the window in the great room and ending into the middle of the room. the crack was hairline, and it traveled through 10 tiles.
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: 10 - Both green power boxes in the front yard are pushed over and need to be straightened (pushed over by landscaping crews);
Investigator’s Observation: VERIFIED: I observed two green utility service boxes in the front yard. Both boxes were not placed plumb or level.
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: 11 - #1 bedroom window has crack in the frame;
Investigator’s Observation: VERIFIED: I observed cracks in the window frame in the bedroom.
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: 12 - #3 bedroom window frame is cracked and window will not stay in the track;
Investigator’s Observation: VERIFIED: I observed cracks in the window frame in the bedroom.
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 - Master bedroom door has center hinge pin missing;
Investigator’s Observation: VERIFIED: I observed that the MB door was missing it's middle hinge pin.
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: 14 - 5 each brick blocks are upside down on the top row of the brick fence;
Investigator’s Observation: VERIFIED: I observed the backyard perimeter brick wall. the top of the wall had 5 blocks that were placed upside down when installed.
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 - 2 each holes in small garage door (not fixed from prewalk);
Investigator’s Observation: VERIFIED: I observed two small holes from damage to the interior of the garage door.
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: 17 - MB room shower has large sheetrock crack above shower head, along the enclosure
Investigator’s Observation: VERIFIED: I observed a crack in the sheet rock above the top of the shower enclosure.
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.
ITEMS NOT REQUIRING CORRECTION The following complaint items require no action by the Respondent:
Compliance Item: 6 - Ceiling fan in the master bedroom is out of balance (needs replaced);
Investigator’s Observation: UNVERIFIED: I did not observe the rattle or unbalance described by the complainant.
Governing Rule: N/A
Compliance Item: 16 - Front entryway concrete cracked
Investigator’s Observation: UNVERIFIED: While there is a crack in the concrete on the front porch, the crack's width was smaller than 1/16" and does not exceed the ROC's tolerance for cracks.
Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(a) workmanship
8. On September 12, 2022, Investigator Smith conducted a job-site inspection. Investigator Smith concluded that Respondent had appropriately corrected items 1, 2, 3, 5, 13, 15, and 17. Investigator Smith concluded that Respondent had failed to correct items 4, 7, 8, 9, 10, 11, 12, and 14. Investigator Smith’s job-site notes provided, in relevant part, as follows:
CORRECTED:
Item #1 Light Switches in kitchen
Item #2 Bathroom lockset doesn’t align
Item #3 Hand Towel Holders in both bathrooms require replacement
Item #5 Construction Debris Under Carpet in Master Bedroom
Item #13 Master bedroom door has center hinge pin missing
Item #15 2 small holes in garage door
Item #17 MB shower has large sheetrock crack
The Following Compliance items were NOT CORRECTED:
Item #4 Two dead plants in front yard
Item #7 Multiple kitchen cabinets defective
Item #8 Both screen doors missing
Item #9 Crack in the tile floor in the greatroom
Item #10 Both Green Power Boxes in front yard pushed over
Item #11 Number one Bedroom window has crack in frame
Item #12 Number 3 Bedroom window has crack in frame
Item #14 Five each brick blocks in exterior wall are set into the wall upside down
9. On September 19, 2022, the ROC issued a Citation against Respondent’s license. Through the Citation, the ROC alleged 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).
10. Respondent filed an answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on December 15, 2022.
13. At hearing, J.C. Villican, Respondent’s Customer Service Coordinator, testified on behalf of Respondent. Complainant testified on behalf of himself. Investigator Smith testified consistently with his job-site inspection notes, the Directive, and the compliance job-site inspection notes.
14. Mr. Villican coordinates repairs for warranty items in one of Respondent’s subdivision. Mr. Villican explained that Complainant was only available on Mondays. However, repairs were scheduled on other days. Mr. Villican explained that it was difficult to arrange for trades to make repairs due to material shortages. Mr. Villican explained that cabinet, drywall, window, stucco, paint, electric, and tile trades were all required to repair the outstanding items. Mr. Villican explained that there were times when Complainant cancelled scheduled repairs.
15. Mr. Yokom admitted that Respondent had corrected all of the items listed in the compliance job-site inspection notes as of the date of the hearing. Mr. Yokom expressed that D R H took significantly delayed addressing his concerns from the time that he moved into his home. Mr. Yokom alleged that Respondent did not start performing repair work until Complainant filed the ROC complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
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 preponderance of the evidence shows that Respondent had not performed its work in professional manner at the time that the Directive was issued. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Registrar’s Directive by September 7, 2022.
5. It is undisputed that Respondent has corrected all of the items listed in the August 10, 2022 Directive. 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, January 4, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
D R H Tucson Construction Inc.
6875 N. Oracle Rd Ste. 125
Tucson, AZ 85704
[email redacted]
Brandon Smith
[email redacted]
Ryen Yokom
366 W. Aberdeen St.
Vail, AZ 85641
[email redacted]
By Miranda Alvarez
Legal Secretary