ALJDEC decisions subject to certification as final

2022A-06495-CHC-ROC · Registrar of Contractors · 2023-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jim Bellington,

COMPLAINANT

CDJ Construction LLC

License No. ROC 324581,

RESPONDENT

No. 2022A-06495-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 27, 2022

APPEARANCES: Complainant Jim Bellington appeared via Google Meet. Registrar of Contractors Investigator Chris Allison appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

CDJ Construction LLC (Respondent) is the holder of License No. 324581 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 8, 2021, Haley Construction entered into a contract with Respondent for rough carpentry for Complainant’s home. The total cost was to be $40,085.00, and $24,525.00 was paid.

On or about August 4, 2022, the Registrar received a Complaint containing 15 items against Respondent alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jim Dimond.

On or about August 29, 2022, the Registrar received a signed notification from Haley Construction that Complainant would now be the named part on the Complaint.

The matter was then re-assigned to Investigator Chris Allison, and the jobsite inspection was performed on August 23, 2022.

Investigator Allison then issued a written directive on or about September 12, 2022, 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 September 27, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - CDJ has abandoned the project

Investigator’s Observation: If Respondent does not respond the Written Directive, this will be considered abandonment.

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

Compliance Item: 2 - Exterior siding has been left unfinished

Investigator’s Observation: Respondent shall complete as contracted.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 3 - Exterior boxed columns were framed incorrectly, which they tried to correct now poor workmanship

Investigator’s Observation: Boxed columns were not framed correctly. 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: 11 - Tyvek has been left incomplete.

Investigator’s Observation: Respondent shall complete as contracted.

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.

(All errors contained in the original).

On October 3, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

On or about October 18, 2022, Respondent e-mailed an Answer to the Registrar.

On or about November 23, 2022, a Notice of Hearing was issued setting a hearing on December 27, 2022 at the Office of Administrative Hearings, an independent state agency.

At hearing Investigator Allison testified as to the Registrar’s involvement and the above timeline.

Investigator Allison testified that Respondent failed to appear at the Jobsite Inspection. As to the abandonment charge, Mr. Allison testified that by Respondent failing to perform according to the written directive this would constitute abandonment.

In addition, Investigator Allison testified that the exterior siding had been left unfinished, the exterior boxed columns were framed incorrectly, and the Tyvek installation had been left incomplete.

Investigator Allison testified further that he believed that sufficient time was given to Respondent to complete the directive requirements.

Finally, Investigator Allison testified that he researched the status of Respondent’s license and that as of December 15, 2022, Respondent’s license had been revoked due to 8 disciplinary actions.

Jim Bellington testified on his own behalf. He testified that Respondent just stopped showing up at the project site and never reappeared. Mr. Bellington testified further that because of this, his general contract did the best they could to do some of the work.

The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, on or about November 22, 2022, the tribunal issued an Order containing the information to join the hearing via Google Meet, at its address of record.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on January 10, 2023. Such prior License record reflects that Respondent’s License No. 324581 was first issued on May 19, 2019 and had been revoked as of December 15, 2022. Further, the record reflects that there was one open complaint, namely the present complaint, and 8 disciplined cases.

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 preponderance of the evidence established that Respondent had abandoned the project in violation of A.R.S. § 32-1154(A)(1), and the exterior siding was not completed nor was the Tyvek installation completed.

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The exterior boxed columns were framed incorrectly, and the Tyvek installation was not completed. 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 preponderance of the evidence also established, that the exterior siding had been left unfinished which was not according to industry standards, thus, Respondent is in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

Finally, the evidence established Respondent failed 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 revoke Respondent’s License No. 324581.

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)(7), 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 30 days from the date of that certification.

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-137160-45720000Done this day, January 10, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Jim Bellington

1020 S Maple Ave

Tempe, AZ 85281

[email redacted]

CDJ Construction LLC

3654 N Jester Cir W

Prescott Valley, AZ 86314

(928) 583-2331

By Miranda Alvarez

Legal Secretary

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-137160-45720000