ALJDEC - Licensing

2022A-07599-CHC-ROC · Registrar of Contractors · 2023-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristy Davis ,

COMPLAINANT

v.

Imperial Structures LLC

License No. ROC 311511,

RESPONDENT

No. 2022A-07599-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2023

APPEARANCES: Complainant Kristy Davis appeared on her own behalf. Brian Ellerman, Owner and Qualifying Party, appeared on behalf of Respondent Imperial Structures LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Imperial Structures LLC (Respondent) is the holder of License No. 311511 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 1, 2019, Kristy Davis (Complainant) entered into a contract with Respondent for the construction of a new home.

On or about September 6, 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 Brandon Smith. After a jobsite inspection, Investigator Smith 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 Monday, November 7th, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Subflooring is lifting under carpet upstairs. You can feel the difference when walking on it.

Investigator’s Observation: VERIFIED: When I walked on the floor in the upstairs, I could feel that the sublfloor was heaving and uneven.

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: 3 - Several doors in the home aren't flush and get stuck Investigator’s Observation: VERIFIED: I observed that the door jambs were not installed plumb to the door the doors. There were obvious rub marks where the doors drag and rub across the jam when closing. The reveal around the doors are also uneven.

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 - Internet wiring never completed

Investigator’s Observation: VERIFIED: I observed the wire had been pulled but not connected to outlets, and not connected outside in the utility box.

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: 5 - Fascia came off the back of the house in May 2022

Investigator’s Observation: VERIFIED: I observed a fascia piece about 8' in length missing from house side "C".

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 - Several shingles need to be repaired

Investigator’s Observation: VERIFIED: I observed that there was loose shingles being moved by the wind on the roof of the "A"/"B" corner on the house.

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 performed work on the home and resolved some of the issues identified in the written directive. The deadline for compliance was extended. After the extended deadline expired, Investigator Smith was notified not all of the corrective work had been performed.

On or about December 22, 2022, Investigator Smith conducted a compliance jobsite inspection at which he determined that Respondent failed to correct compliance items 2, 8, and 9.

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 Smith testified that during his inspections, he observed the excessive noise from the flooring. Investigator Smith noted that the Registrar’s standards provide that floors and subfloors should not have excessive squeaks or be loose.

Complainant testified that the squeaking floors on the second story were so loud that she would wake up her daughter when going into her room at night. Complainant also noted that the primary bedroom had a hump in the floor. Complainant stated that the squeaking upstairs could be heard from people downstairs. Complainant asserted that she was not being unreasonably demanding and understood some noise could exist, but she believed that a new home should not make as much noise as this house was making.

Mr. Ellerman testified that the home was built to code and Complainant was expecting perfection. Mr. Ellerman stated that he did not feel the noise was excessive. Mr. Ellerman indicated that there was nothing that could be done to address the squeaking even if the entire floor was ripped up and replaced because there would always be flexing in the wood. Mr. Ellerman stated that he had spent thousands to address the issue and he had “done [his] part.”

Administrative notice is taken of Respondent’s prior License record on March 8, 2023. Such prior License record reflects that Respondent’s License No. 311511 was first issued on February 17, 2017, and was suspended on March 1, 2023, for non-renewal. Such prior License record also reflects that there were no other open complaints and two prior resolved/settled 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 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. 311511 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.

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, March 8, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

Brandon Smith

[email redacted]

Imperial Structures LLC

[email redacted]

Kristy Davis

[email redacted]

By: OAH Staff