ALJDEC - Licensing

2022A-07906-CHC-ROC · Registrar of Contractors · 2023-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen Newbrey,

COMPLAINANT,

v.

Current Sources, LLC

License No. ROC 255116,

RESPONDENT.

No. 2022A-07906-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 14, 2023

APPEARANCES: Complainant Karen Newbrey appeared on her own behalf. Tom Stevens appeared on behalf of Respondent Current Sources, LLC. Arizona Registrar of Contractors Investigator Arlo Houston appeared as a witness. Izaac Chiquete also appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Current Sources, LLC (“Respondent”) is the holder of License No. 255116 issued by the Arizona Registrar of Contractors (“Registrar”). Thomas Joseph Stevens is Respondent’s Qualifying Party and sole Member.

In or about February 2021, Karen Newbrey (“Complainant”) contracted with Respondent for Respondent to perform remodeling work at her home. Complainant hired Respondent due to the fact that Mr. Stevens is Complainant’s realtor’s husband. The scope of the remodel work included the installation of a new electrical panel, a new HVAC system, a tankless water heater, the construction of a pool cabana, window replacement, and a remodel of the pantry. The parties did not execute a written contract. Complainant paid Respondent approximately $35,000.00.

On or about September 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 Manny Bermudez. After an October 25, 2022 Jobsite Inspection, Investigator Bermudez 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 November 22, 2022.

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

The Respondent is to ensure that any and all required building permits

are obtained from the Local Building Authorities prior to making

corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Compliance Item: 1 - Cabana

Investigator’s Observation: verified: at time of investigation I observed in the backyard by swimming pool an attached awning with electrical. The respondent acknowledged that no permits or inspections had been obtained for this structure.

Compliance Item: 2 - Cabana Fan

Investigator’s Observation: Verified: at time of investigation I observed the ceiling fan blades warped and finish peeling off.

Compliance Item: 3 - Cabana Tile

Investigator’s Observation: Verified: at time of investigation, I observed multiple areas of poor grout coverage and crack in the grout on the bar area inside and outside the residence.

Compliance Item: 5 - Inside tile

Investigator’s Observation: Verified: at time of investigation I observed an area of unfinished tile on the bar/ window area.

Compliance Item: 6 - Pantry plumbing lines

Investigator’s Observation: Verified: at time of investigation, I observed a tank less water heater had been installed in the pantry/ laundry room. No permits or inspections have been obtained for this item.

Compliance Item: 7 - windows bought vs installed

Investigator’s Observation: Verified: at time of investigation I did not observe any time of window tinting as stated in the invoices provided. No permits or inspections have been obtained for this item.

Compliance Item: 8 - faux wall repair

Investigator’s Observation: Verified: at time of investigation, I observed a hole in the brick exterior wall of one of the bedrooms. the hole was covered with a faux wall board that looked like brick.

Compliance Item: 9 - No permits for A/C, water heater and windows

Investigator’s Observation: Verified: a check of the City of Tucson Building and Planning department disclosed only a permit for the electrical service panel had been obtained.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 4 - Cabana Portable Bar

Investigator’s Observation: Unverified: at time of investigation I saw a rollaway cabinet with tile on top, however I cannot determine if this is a manufacture issue or respondents responsibility.

All errors and emphasis in original.

Investigator Bermudez thereafter issued an Amended Written Directive extending the deadline date for compliance to December 22, 2022. All other terms of the original Written Directive remained in place. Notwithstanding the extension of time to comply, Respondent did not comply with the Written Directive. Consequently, the Complaint was forwarded to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

The Complaint was subsequently reassigned to Investigator Arlo Houston. Investigator Houston testified consistently with the above delineated findings. Investigator Houston testified that after the Written Directive was issued to Respondent, the parties executed a contract, however, the written contract did not comply with the requirements for contracts as it did not contain the advisement to a homeowner regarding how to file a complaint with the Registrar.

Investigator Houston conducted a prehearing inspection on March 7, 2023, at which both parties were present, as well as one of Respondent’s subcontractors. Investigator Houston testified that Respondent did not obtain permits for the electrical, HVAC, plumbing, or cabana. Investigator Houston testified that Mr. Stevens informed him that he applied for an electrical permit, however, there is no approved permit for the project. Investigator Houston explained that because electrical, plumbing, and HVAC are all outside the scope of its license, Respondent cannot apply for the requisite permits, and any subcontractors hired by Respondent did not obtain the proper permits. Investigator Houston further testified that a permit was also required for the cabana because it was attached, and then detached by cutting the rafters, however, “it is still pressing on the structure.”

Regarding the cabana, Investigator Houston testified that the structure is now detached, however, it is in contact with the rear rafters and “the horizontal loads are in close proximity.” Respondent provided the fan blades to Complainant at the prehearing inspection, however, did not attach the blades. Regarding the cabana tile grout, Investigator Houston testified that Respondent attempted to clean the exterior tile and grout. Investigator Houston testified that the inside tile remains the same.

Investigator Houston testified that the windows have been replaced and the parties resolved the issue with the faux wall repair. Investigator Houston testified that a permit for the window replacement was also necessary due to the fact that the size of the openings for the windows changed due to the remodel.

Complainant testified that she expected Respondent to obtain the proper permits and expressed frustration because she expended inheritance proceeds on this project. Complainant testified that Mr. Stevens never informed her that Respondent was not licensed to perform electrical, plumbing, and HVAC work, and that she trusted his wife as her realtor. Complainant requested that Respondent’s license be revoked and that she be financially compensated.

Regarding the failure to comply with the minimum elements of a contract, Mr. Stevens testified that he “thought they were friends.” Mr. Stevens further testified that he disagrees that permits were required for the cabana and the windows. Mr. Stevens asserted that he “could not get licensed trades to apply for permits” and the “plumber would not come back” to the project because those trades did not want to accept responsibility for “someone else’s bad work.”

Regarding the broken tile, Mr. Stevens testified that this was attributable to a “break-in months after it was installed.” Mr. Stevens testified that a rock was thrown through the window which caused the tile to break and damage to the grout.

Izaac Chiquete, Respondent’s subcontractor, testified that he performed all work Respondent requested and ensured that Complainant was satisfied with his work. Mr. Chiquete testified that plumbing, electrical, and HVAC work are beyond the scope of his license, and therefore, he could not perform any work in relation to those issues.

Administrative notice is taken of Respondent’s prior License record on March 30, 2023. Such prior License record reflects that Respondent’s License No. 255116 was first issued on July 7, 2009, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplined complaints, and zero resolved/settled 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 uncontroverted evidence of record established that Respondent failed to obtain the required permits for the project . Therefore, Complainant established that Respondent disregarded a building code in a material respect in violation of A.R.S. § 32-1154(A)(2)(b).

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 initially provide a written contract for the project to Complainant, and that after Respondent was advised to do so, the written contract did not contain all of the required elements. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued, notwithstanding an extension in which to do so. Therefore, Complainant established that Respondent failed to take appropriate corrective action, without valid justification, 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. 255116 for a period of seven (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 (30) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 31, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Karen Newbrey

[email redacted]

Current Sources, LLC

[email redacted]

By: OAH Staff