ALJDEC - Licensing

2022A-07298-CHC-ROC · Registrar of Contractors · 2023-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Douglas Gabriel,

COMPLAINANT

v.

Kyan Builders LLC

License No. ROC 149149,

RESPONDENT

No. 2022A-07298-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 5, 2023

APPEARANCES: Douglas Gabriel appeared on his own behalf. Tony Nace appeared on behalf of Kyan Builders LLC. Investigator Christopher Fultz appeared on behalf of the Registrar of contractors.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Kyan Builders LLC (Respondent) is the holder of License No. 149149 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 5, 2019, Douglas Gabriel (Complainant) entered into a contract with Respondent for, among other things, black fascia roof trim and window installation.

On or about September 16, 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 Christopher Fultz. After a jobsite inspection, Investigator Fultz 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 May 22, 2023.

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 reasons, 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.

NOTE: This license is currently suspended and no corrective work can be performed at this time.

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Leaking - caused ceiling, drywall damage, secondary drip pan not attached.

Investigators Observation: Secondary pan is not installed and is just sitting in place under air handler. At some point there was a condensation leak that cause dry wall damage to the ceiling below the unit in the attic.

*Install secondary pan correctly and repair all water damaged locations due to the leak. Verify installation or complete all condensations lines and secondary lines.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #2: Not complete - Didn't hook up heat / missing metal pipe. Investigators Observation: Homeowner states last fall it was discovered that the heating portion of the unit was not functioning or the flu pipe was not installed. With respondents failure to return to correct the homeowner had others perform work to make the heating function operate. Flu pipe as installed does not appear correct. *Verify the heat function is operating correctly and install flu pipe correctly.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #4: New unit attached to old air ducts, poorly hung, almost folded, poor circulation.

Investigators Observation: The installation of the unit and/or workers in the space appears to have compromised the existing flex duct work causing restrictions.

*Correct all locations of poorly attached and locations with the duct lines foled causing poor air movement.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #6: Old unit still in the attic (dangerous) if it falls through ceiling.

Investigators Observation: Old unit has not been removed for the attic.

*Remove all the old components and dispose of properly.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #7: Left the area a complete mess.

Investigators Observation: A mess and debris is still present in the attic and needs to be cleaned up and removed. Observed locations where the attic insulation has been compromised needs to be corrected as well.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #8: Never provided us with invoice/receipt. We asked multiple times for receipts and always told "oh yeah, I'll email you as soon as I get home."

Investigators Observation: Warning letter will be issued for Elements of a Contract.

Governing Rule: 32-1158 Elements of a Contract.

All errors in original.

After the deadline of in the directive expired, Investigator Fultz was notified some corrective work had been performed.

The Compliance Jobsite Inspection occurred on April 14, 2023. Investigator Fultz’s Compliance Jobsite Inspection Notes provided as follows:

Compliance Item: 1 - The Black Fascia Roof Trim was poorly placed and is unacceptable esthetically-I have been advised they used too thin of gauge and too long of runs on our roof trim. Is has an unacceptable amount of "oil canning", roof coating material hanging over the edge on it, different color materials were used and poor assembly. It had all kinds of what we initially called "waves" or "divots" all over the surface it like someone had went along and hit it with a baseball bat all over. The exterior "Drywall Eaves" under all the multiple/many roof lines and levels were poorly or not finished. Multiple areas are already cracking and drywall is literally falling off/apart. Some areas were also left unpainted.

Investigator’s Observation: There was two different types of black metal used in the finishing of the roof. However, there is no standard for this. The ROC cannot make a determination on the difference in this color. However, damage caused during the installation, the waves and divots need to be fixed. There is also unfinished surfaces under the eves as well as cracking, pealing and unpainted drywall. This needs to be completed

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 - We have severely scratched windows caused by the construction cleanup crew. Approximately 4 months after we moved in we hired window cleaners. Joel, the owner, immediately called me outside, prior to touching a single window, and proceeded to show me all of the severely scratched windows we have. Our contractor, Tony Nace , was advised and he had two separate "expert

window buffers" out to evaluate the damage. Both parties agreed that the scratches are too deep to be acceptably "buffed out". We can see most of these scratches from 20+ feet away.

Investigator’s Observation: Windows in the gym area have extreme scratches to the glass both inside and outside the panes. This damage looks like installation damages, This needs to be addressed.

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 in original.

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 Fultz testified consistently with his Jobsite Inspection Notes, Written Directive, and Compliance Jobsite Inspection Notes.

Complainant testified the black fascia along the roof had not been repaired. The glass scratches were visible from a distance of more than 20 feet.

Mr. Nace testified there was nothing that could be done regarding the fascia. He testified Complainant’s insistence on the use of black metal fascia as well as Complainant’s insistence on length of fascia caused the workmanship issues. Because the material was black metal it would expand and contract as the weather warms and cools. This expansion and contraction was inevitable. Mr. Nace further testified the extra-long length of each fascia resulted in more downward pressure on each mounting screw the further down the length of the fascia. Because the fascia was one long metal piece the downward pressure on each screw was cumulative which contributed to buckling and rippling. Mr. Nace also testified if the fascia was cut into several smaller length pieces the buckling and rippling affect would still be present but minimized. Finally, Mr. Nace testified that the glass scratches were not visible.

Administrative notice is taken of Respondent’s License record on July 21, 2023. License record reflects that Respondent’s License No. 149149 was first issued on September 30, 1999, and is currently active. There were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 complete the corrective work following the Directive being issued. Regarding the black fascia, it may be true Complainant’s choices regarding materials, color, and length contributed to the inability of Respondent to complete the project in a workmanlike manner; however, Respondent failed to obtain a waiver from Complainant. Assuming Respondent’s testimony was true, he was aware of the inevitable rippling and buckling of the fascia and failed to notify Complainant of said inevitability. Furthermore, regarding the scratched glass, the Registrar of Contractors threshold is visibility of scratches from 15 feet or more. Complainant testified the scratches were visible at a distance of 20 feet. Because the scratches were visible at 20 feet, visibility of scratches of less than 20 feet would likely increase the closer the vantage point. 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. 149149 for a period of 7 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.

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, July 25, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Kyan Builders LLC

[email redacted]

Douglas Gabriel

[email redacted]

Chris Fultz

[email redacted]

By: OAH Staff