ALJDEC - Licensing
2022A-06507-CHC-ROC · Registrar of Contractors · 2023-04-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Taylor Zweifel ,
COMPLAINANT
v.
Nationwide Sunrooms and Contracting LLC
License No. ROC 316020,
RESPONDENT
No. 2022A-06507-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 13, 2023, 1:00 P.M.
APPEARANCES: Complainant Taylor Zweifel appeared on her own behalf; Richard Craven, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Nationwide Sunrooms and Contracting, LLC (Respondent), is the holder of License Number 316020 issued by the Registrar of Contractors (Registrar).
2. On or about August 5, 2022, Taylor Zweifel (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of a patio cover and pergola by Respondent at a residence in Phoenix, Arizona (“project”).
3. The Registrar performed an inspection of the project on September 28, 2022. After several extensions, the Registrar issued a Second Amended Written Directive, dated November 9, 2022, requiring Respondent to correct the alleged deficiencies on the project by completing the following items by December 16, 2022, by appropriate means:
Compliance Item 1: We were informed a permit was not required by Nationwide due to utilizing the existing structure (informed via in person and I requested clarification via email). Therefore, a permit was not obtained by neither homeowner nor contractor prior to construction (we checked the city website online to see if permit was obtained by contractor). Was a permit required? Under the payment schedule in the contract, it states, "Deposit to lock in Raw Goods, Begin Engineered Drawings, Design, Permit Documentation & HOA Approval." Therefore, did we pay for a permit that was not obtained?;
Investigator’s Observation: The work performed by the respondent (patio cover on attached patio) should be permitted and inspected. Respondent was not aware that a permit was required. Respondent should comply with all requirements of the local
building authority and provide electronic copy of passed final inspection to Investigator.
Governing Rule: A.R.S. §32-1154 (A) (2) (b), Departure from or disregard of: A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item 2: The electrical wire installed by Nationwide is not where we
requested the install to be. We were informed in person that the wire could not be where we requested it to be. Then, via emails, we were told that our electrician could move the wire if we want as it was "installed in the direct middle." We contacted Temo Sunrooms (the company who makes the product Nationwide installs) and they stated the wire should not be installed on a seam. Nationwide installed the wire on a seam, and not where we had requested numerous times for it to be. Then, we are being informed by Nationwide that we can have an electrician move the electrical wire to where we want it to be. ;
Investigator’s Observation: Per manufacture recommendations (PDF Page 25 of 20220829 Additional Information 2022-06507) “Ceiling fan should be mounted in the center of a panel and not at a seam...”. Work should be completed in accordance with manufacture recommendations. Respondent should correct by appropriate methods.
Governing Rule: ARS §32-1154 (A) (3), 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.
Compliance Item 4: In our contract, it was agreed upon that Nationwide would
reinstall our string lights post Temo product installation. This was not completed as the two contractors present stated, in person, that they were broken and not informed about the reinstallation of lights. My electrician informed us they are not broken and some of the holes for nails were cut for flush mounting.
Investigator’s Observation: Lights have been removed. Respondent should relocate owner furnished lights per contract.
Governing Rule: A.R.S. §32-1154 (A) (8), Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.
4. Upon being informed that no corrective action was performed prior to the Directive deadline, the Registrar then issued a Citation to Respondent, dated December 30, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2)(b) (departure from or disregard of plans or specifications or any building code standards);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b) for failure to perform work in accordance with applicable building codes and professional industry standards);
c. A.R.S. § 32-1154(A)(8) (failure in a material respect to complete a construction project or operation for the price stated in the contract):
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated February 3, 2023, that set a hearing for March 13, 2023, at 1:00 P.M.
6. A hearing was held on March 13, 2023, at 1:00 P.M. Complainant Taylor Zweifel testified on her own behalf; Respondent presented the testimony of Richard Craven, Owner, and Melissa Bower, Office Manager. Lisa Melton, the Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s unnumbered exhibits submitted on March 8, 2023, and Respondent’s unnumbered exhibits submitted on February 28, 2023.
7. The Investigator testified on behalf of the Registrar consistently with her findings contained in the Directive and her job inspection notes. Specifically, she testified the permit had been opened on October 31, 2022, and she referenced an email dated March 3, 2023, from the city of Phoenix stating that earlier comments from the city had not been addressed and that new documentation needed to be submitted. She stated she had at the outset provided Respondent with the City of Phoenix Planning and Development Department “Residential Patio Covers Guideline” which listed information needed to obtain a building permit.
8. As herein relevant to the Citation, Complainant testified that she contacted the manufacturer, Temo Sunrooms, regarding the placement of the ceiling fan and that an individual from the manufacturer responded by email that a ceiling fan should be mounted in the center of the panel and not at a seam. She further testified that she was told by Respondent that no permit was needed. Lastly, she testified that Respondent failed to reinstall outdoor string lights that had been removed.
9. As herein relevant to the Citation, Richard Craven testified on behalf of Respondent that the ceiling fan could be mounted through a seam, but that the wire location can still be moved. He further testified that he did not want to rehang the string lights because it would require nails through the newly-installed surface. He stated Respondent would never be able to get a permit for its new work already completed because the pre-existing structure to which Respondent’s work was done did not meet minimum setback requirements of the code because it was three feet off the property line rather than ten feet as required.
10. As herein relevant to the Citation, Melissa Bower testified on behalf of Respondent that she went to the city and was told there was nothing wrong with the plans Respondent had submitted but that there was an illegal structure that needed to be torn down because it was within the 10 foot setback requirement. She took notes of her conversation on a drawing of the property but received nothing from the city in writing regarding the purported illegality of the pre-existing structure.
11. Administrative notice is taken of Respondent’s prior license record. Such record reflects that Respondent’s License No. 316020 was first issued on October 3, 2017 and renewed through October 31, 2023. Such prior License record also reflects that there were three open complaints and no prior complaints against Respondent’s license.
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 fall 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:
...
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.
...
8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.
...
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(b) which requires that “[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.”
6. 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, and consequently Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(2)(b). There is no dispute that a building permit was not obtained and that Respondent proceeded with the work without obtaining one. Initially, Respondent had claimed that a building permit was not required for its work. It later attempted to obtain a permit by submitting an application on October 31, 2022. Over four months later on March 3, 2023, the Planning and Development Department of the city of Phoenix was still awaiting “the applicant of the project to submit the new drawings addressing the comments and fully complete the resubmittal task.” Earlier emails from the city reflected the comments to be addressed by Respondent were sent to Respondent as early as January 12, 2023.
Respondent claimed that it would never be able to obtain a permit due to the fact that the pre-existing structure did not comply with code and would have to be torn down. While that may be true, the evidence to support such a claim was lacking. The hearsay verbal statement of an unidentified city official with no substantiating documentation from the city is not sufficient evidence to support a finding that a building permit was not obtainable. There was no denial of a permit here; only Respondent deciding not to proceed to obtain a permit because it believed it would be denied.
7. A.R.S. § 32-1154(A)(3). Complainant has not presented sufficient evidence to establish that Respondent failed to perform work in accordance with any applicable building codes and professional industry standards in violation of Administrative Code Rule 4-9-108(b) with regard to the placement of the ceiling fan wire. While the placement of a ceiling fan wire not in compliance with a manufacturer’s specifications could more appropriately be cited as a violation of A.R.S. § 32-1154(A)(2)(a) (a departure from or disregard of plans or specifications in any material respect that is prejudicial to another), in any case, the evidence presented was insufficient to show that specifications were not met. The evidence consisted solely of the hearsay statement of an individual from the manufacturer (whose role was unidentified) concerning where the ceiling fan “should” be mounted. This does not amount to a manufacturer specification. While Respondent may very well have departed from a specification, the evidence of the actual written specification was lacking to make such a finding.
8. A.R.S. § 32-1154(A)(8). Complainant has not presented sufficient evidence to establish that Respondent has failed in a material respect to complete a construction project for the price stated in the contract. Although Respondent removed Complainant’s string lights in order to install the structure, the Tribunal does not consider the rehanging of string lights to be a material failure to complete the construction contract.
Although not specified in the Directive as a violation of this subsection, the Investigator testified she also considered the failure to obtain a building permit as a failure to complete the contract for the price stated in the contract. Even had the failure to obtain a permit been identified under Compliance item 4 of the Directive, which it was not, given that there are more specific statutory prohibitions dealing with this type of deficiency (A.R.S. § 32-1154(A)(2)(b) above), the Tribunal does not consider the failure to obtain a permit as a failure to complete the contract for a price stated in the contract. If it were, every claimed material deficiency in construction contract work could conceivably be considered a failure to “complete” the contract.
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification, and consequently Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There is no dispute that Respondent did not perform corrective action in the form of obtaining a building permit. While Respondent claimed it would have taken additional time to obtain a permit, Respondent failed to request additional time prior to the expiration of the Directive and there was no evidence presented that Respondent submitted the additional documents requested by the city for the permit. Further, as stated above, the evidence is insufficient to support Respondent’s claim that it would never have been able to obtain a permit due to the purported illegality of the pre-existing structure. Accordingly, Respondent has failed to show that there was a valid justification for not performing corrective action.
10. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to establish cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(2)(b) and § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Nationwide Sunrooms and Contracting, LLC’s, License Number 329964 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 the outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, April 2, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Taylor Zweifel
1208 E. Solano Dr.
Phoenix, AZ 85014
[email redacted]
Nationwide Sunrooms and Contracting, LLC
38252 N. Jacqueline Dr., Suite F
Cave Creek, AZ 85331
[email redacted]
By: OAH Staff