ALJDEC decisions subject to certification as final

2022A-05896-CHC-ROC · Registrar of Contractors · 2023-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Samantha Hernandez ,

COMPLAINANT

La Casabella LLC Antonio Giannandrea

License No. ROC 318003,

RESPONDENT

No. 2022A-05896-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 17, 2023, 1:00 P.M.

APPEARANCES: Complainant Samantha Hernandez appeared on her own behalf; Antonio Giannandrea, managing member of Respondent, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. La Casabella, LLC (Respondent), is the holder of License Number 318003 issued by the Registrar of Contractors (Registrar).

2. On or about July 19, 2022, Samantha Hernandez (Complainant) filed a Complaint against Respondent with the Registrar alleging the failure to obtain a building permit in connection with remodeling by Respondent of a residence in Phoenix, Arizona (“project”). The Complaint reflected a contract amount of $26,195.00.

3. The Registrar performed an inspection of the project on August 22, 2022. Thereafter, the Registrar issued a Directive, dated August 25, 2022, requiring Respondent to correct the lack of a building permit on the project by completing the following items by September 14, 2022:

Complaint Item #1: A permit was not pulled as required. I believe a load bearing wall was removed and support was not added. Incomplete job.

Investigators Observation: Observed a framed wall that was moved from a location under upper floor trusses. It appears to have been moved about 4 feet. The floor trusses that are in place in this home have very specific load bearing locations and bearing wall supports cannot be moved without engineering details how the load is to be carried if removed. Parties state no code compliance building permit is in place. This work requires a building permit. Other work has been performed on site that also requires a building permit. Structure work (wood framing), plumbing relocation and electrical work all requires a permit. The removal of the load bearing wall has begun to effect the upper level with drywall cracks and doors now not operating correctly. *Obtain building permit for local code jurisdiction governing authority and obtain required inspections and approvals.

Governing Rule: 32-1154(A)(2)(b) Departure from or disregard of a building code of this state. 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.

4. After the expiration of the time period in which to perform corrective work and after being informed by Complainant that no work had been performed, the Registrar then issued a Citation to Respondent dated, August 22, 2022, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);

b. A.R.S. § 32-1154(A)(2)(b) (departure from or disregard of plans or specifications or any building code standards);

c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);

d. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract;

e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar issued a Notice of Hearing, dated October 25, 2022, which after a continuance was granted set a hearing for January 17, 2023, at 1:00 P.M.

6. At the hearing on January 17, 2023, Complainant Samantha Hernandez testified on her own behalf; Antonio Giannandrea, managing member of Respondent, testified on behalf of Respondent. Jack Grimm, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.

7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he observed structural, plumbing and electrical work that had been performed without a building permit. He stated that on September 22, 2022, after the Directive period had expired, Complainant advised him that she had heard nothing from Respondent.

8. Complainant Samantha Hernandez testified, as herein relevant to the Citation, that Respondent did contact her during the Directive period but that she did not respond to it. She stated she instead sought “advice” from the Investigator and told him Respondent had not proceeded with the Directive. Specifically, on September 20, 2022, the Investigator asked her by email if there had been any contact with the contractor. On September 22, 2022, she replied by email stating “there has been no action regarding the issue directive.” She did not inform the Investigator that Respondent had indeed contacted her during the Directive period.

9. Antonio Giannandrea testified on behalf of Respondent, as herein relevant to the Citation, that he had not believed a building permit was necessary because he was not removing a load bearing wall. He also stated he had not been doing any plumbing and electrical work that involved relocation. He further testified that once the Directive was issued on August 25, 2022, he went to the city on September 7, 2022, to inquire about obtaining a building permit and was told structural plans and drawings would be required. He stated he then contacted Complainant twice on September 13, 2022, to request permission to come to Complainant’s residence with a structural engineer to prepare drawings and plans but that Complainant never responded. Lastly, Respondent testified that it had provided a new form contract to the Registrar.

10. Administrative notice is taken of Respondent’s prior license record which reflects that Respondent’s License No. 318003 was first issued on February 6, 2018. Such prior license record also reflects a disciplinary action imposed against Respondent’s license by Final Administrative Decision and Order, dated November 14, 2022, in Case No. 2022A-01332-CHC-ROC in which Respondent’s license was suspended for seven days for violations of A.R.S. § 32-1154(A)(8), § 32-1154(A)(9)(a), § 32-1154(A)(12), and § 32-1154(A)(22)..

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, 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).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

3. Violation of any rule adopted by the registrar.

...

12. Failure in any material respect to comply with this chapter.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....

7. A.R.S. § 32-1154(A)(1). Complainant has failed to present sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). As discussed below regarding failure to perform corrective work, the evidence presented reflected that Respondent was willing to proceed with obtaining building permits but was prevented from doing so.

8. A.R.S. § 32-1154(A)(2)(b). Complainant has presented sufficient evidence to establish that Respondent departed from or disregarded a building code of this state or any political subdivision of this state in any material respect that is prejudicial to another. The evidence presented reflected that Respondent had proceeded with work without the required building permits for such tasks as moving walls, and plumbing and electrical work.

9. A.R.S. § 32-1154(A)(3). To the extent performing work without a required building permit constitutes the failure to perform work in a professional and workmanlike manner, Complainant has presented sufficient evidence to establish that Respondent did not comply with Arizona Administrative Code Rule 4-9-108(a). Respondent was not otherwise cited for specific deficient work other than performing work without a required building permit.

10. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the contract. The license number, estimated completion date, and notice of complaint procedure were missing from the contract. However, because Respondent testified it previously submitted a new form contract to the Registrar, and considering that such submission was a requirement in Case No. 2022A-01332 (the consequence being suspension until it demonstrated it did so), the Tribunal finds no reason to discipline Respondent again for this violation.

11. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification. Consequently, Respondent should not be disciplined for a violation of A.R.S. § 32-1154(A)(22). The evidence reflected that Respondent contacted the city about proceeding with a building permit during the Directive period. It was further undisputed that Respondent contacted Complainant during the Directive period to access Complainant’s residence with a structural engineer in order to prepare plans and drawings for the building permits and that Complainant did not respond. Instead, Complainant then advised the Investigator that there had been no action regarding the Directive but failed to advise the Investigator that Respondent had indeed contacted her for access but that she had not responded to Respondent. The Tribunal finds Complainant’s failure to allow access and failure to fully inform the Investigator she had been contacted by Respondent to be a valid justification for Respondent failing to perform corrective work.

12. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3), because a valid justification has been shown for Respondent not completing the corrective work, Complainant has failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, that the Citation and the Complaint in this matter be dismissed.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, February 6, 2023.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Samantha Hernandez

3209 W. Pleasant Lane

Phoenix, AZ 85041

[email redacted]

La Casabella LLC

23 E. Pierce St.

Tempe, AZ 85281

[email redacted]

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-137160-45720000

By: OAH Staff-54864001

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-137160-45720000