ALJDEC decisions subject to certification as final

2022A-06448-CHC-ROC · Registrar of Contractors · 2023-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle Cochran,

COMPLAINANT

v.

Pacific Cascade Builders LLC

License No. ROC 288913,

RESPONDENT

No. 2022A-06448-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2023

APPEARANCES: Complainant Michelle Cochran appeared on her own behalf. Steven Diaz, Owner and Qualifying Party, appeared on behalf of Respondent Pacific Cascade Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Pacific Cascade Builders LLC (Respondent) is the holder of License No. 288913 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 6, 2022, Michelle Cochran (Complainant) entered into a contract with Respondent for a remodeling project.

On or about August 15, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Peru. On September 22, 2022, after a jobsite inspection, Investigator Peru issued a written directive to Respondent 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 October 10, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - "Interior Painting - not done in a workmanlike manner. All doors, trim and baseboard was to be painted with semi-gloss paint, per instruction. All doors do not appear to have been painted with semi-gloss paint."

Investigator’s Observation: Verified.

At the time of this Inspection, the Interior doors do not match the casing/baseboards. (Reference P7, P8, P9)

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 - "Kitchen cabinets not installed properly, there is spacing at the top of the cabinets and at the walls. Cabinets had to be reset at least 3 times. Still not correct."

Investigator’s Observation: Verified.

At the time of this Inspection the Base Cabinet left of the refrigerator, has the toe-kick separating from the cabinet. However the rest of the Kitchen Cabinet installation meets the Minimum Workmanship Standards at this time. (Reference P3) Correct the Toe-Kick

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: 6 - "Baseboards at Bi-fold closets are not finished."

Investigator’s Observation: Verified.

At the time of this Inspection, the baseboards are not finished correctly at the Hallway Closet with Bi-fold Doors, and the Bedroom Closet with Bi-fold Doors. (Reference P4, P5).

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 - "Kitchen Drawer fronts in Kitchen must be replaced as the contractor was to install pulls provided by the owner. Knobs were installed. Owner has ordered new drawer fronts."

Investigator’s Observation: Verified.

At the time of this Inspection, both parties acknowledge that this needs to be corrected. The Complainant states that the new drawer fronts are on site.

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: 18 - ADDENDUM ITEM: "Cracking joint/ separation on ceiling."

Investigator’s Observation: Verified.

At the time of this Inspection, there is a crack on the Interior Drywall Ceiling Ridge. The crack is due to normal settling, and the contractor acknowledges the (1) time within (1) year settling crack agreement per ROC.

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: 19 - “Dishwasher Door Seal installed incorrectly."

Investigator’s Observation: Verified.

At the time of this Inspection, the Factory supplied seal has been removed, and re-installed on the cabinetry opening for the dishwasher. The seal should be installed per manufacturer' standards (Dishwasher /Frigidaire FDSH450LAF).

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.

Following the issuance of the written directive, Respondent did not contact Complainant regarding the work needing to be done. After the deadline in the directive expired, Investigator Peru was notified no corrective work had been performed.

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 Peru testified as to his observations of the project during the jobsite inspection.

Complainant testified that Respondent did not contact her after the written directive was issued prior to the deadline. Complainant stated that Respondent did not contact her until October 12, 2022, two days after the deadline expired.

Mr. Diaz testified that he misunderstood the deadline in the written directive. Mr. Diaz admitted that the items identified in the written directive needed to be corrected and ultimately stated that he was not contesting the allegations set forth in the citation.

Administrative notice is taken of Respondent’s prior License record on February 1, 2023. Such prior License record reflects that Respondent’s License No. 288913 was first issued on February 7, 2014, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

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 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 attempt to complete the corrective work following the Directive being issued. 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. 288913 for a period of three 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, February 1, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

John Peru

[email redacted]

Michelle Cochran

[email redacted]

Pacific Cascade Builders LLC

[email redacted]

[email redacted]

By: OAH Staff

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-137160-45720000