ALJDEC - Licensing
2022A-08945-CHC-ROC · Registrar of Contractors · 2023-02-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Scott A Crozier,
COMPLAINANT
v.
New Level Construction LLC
License No. ROC 337732,
RESPONDENT
No. 2022A-08945-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 1, 2023
APPEARANCES: Complainant Scott A. Crozier appeared on his own behalf. Glenn Dillon, Owner and Qualifying Party, appeared on behalf of Respondent New Level Construction LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
New Level Construction LLC (Respondent) is the holder of License No. 337732 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 6, 2022, Scott A. Crozier (Complainant) entered into an agreement with Respondent with a scope of work to include “[r]ebuilding existing deck and add an extension.” Respondent did not provide a written contract in advance of the project, but issued Complainant an invoice with the scope of work listed indicating a total cost of $6,700.00.
On or about October 3, 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 Miles Crosby. After a jobsite inspection, Investigator Crosby 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 15, 2022.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Change Order for 4 - 4x8 pillars with concrete footings to replace 3 crooked pillars on back deck - not done
Investigator’s Observation: I observed the deck support CMU piers were not replaced. Due to lack of a proper contract, there is not a scope of work to reference. However, the new deck should not have been built upon the existing piers. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 5 - One piece of decking-South side of chimney is wrong color (a sample bought by owner) - replace with correct
Investigator’s Observation: I observed the piece of decking not a color match to the rest. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 6 - Skirting lattice has an unfinished edge in one location
Investigator’s Observation: I observed the lattice to be unfinished. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 7 - There are several unfinished open spaces around the edges of the deck and railing
Investigator’s Observation: I observed multiple areas where the deck rail posts were not completed or not completed properly. One post does not Compliance Item: 10 - Railing installed too low & improperly. 3.5" railing supports (included w/railing) were not used -sagging
Investigator’s Observation: I observed the railing to not be installed per the manufacturer’s instructions. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 11 - Stairs have varying rise dimensions & insufficient tread depth. No riser - 1st step. Remove & rebuild
Investigator’s Observation: I observed the stairs to not have uniform rises. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 12 - Concrete stair landing is too small, crooked, and not smooth. Should be removed and replaced
Investigator’s Observation: I observed the landing to not be constructed to minimum standards. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 14 - Trex decking at top of stairs is not even with the deck and may pose a tripping hazard-remove & rectify
Investigator’s Observation: I observed the decking at the top of the stairs to not meet standards and formed a tripping hazard. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 15 - Pieces of Tex deck around the fireplace are not cut in a first class manner-aren't adequately/rigidly affixed
Investigator’s Observation: I observed the gaps at around the fireplace to not meet standards. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 16 - One joist near the middle of the chimney doesn't appear to be treated wood or to have joist tape
Investigator’s Observation: I observed a joist that did not appear to be treated wood nor have deck tape on top. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 17 - The deck slopes inappropriately. As examples, the slopes include 2 inches from one part of the cabin to the edge of the deck. It slopes over 3 inches from the north end of the deck to the south edge. From the sliding door riser to the east edge of the deck it slopes over 5inches. The deck landing in front of the sliding doors slopes inward toward the doors.
Investigator’s Observation: I observed the deck to have slop that doesn't meet standards. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 18 - Posts are not secured properly. As an example, one post on the south end of the deck is not safely attached, can be easily moved 5 inches in either direction creating a safety hazard. The railing going from that particular post toward the cabin, is only secured on top by one screw.
Investigator’s Observation: I observed many of the post ties to not be installed correctly nor have the adequate fasteners.
. . . .
Compliance Item: 19 - Many of the posts are not plumb. They are out of plumb in different directions. Every post that goes to the ground has been placed directly into concrete within sonos tubes rather than using Simpson Strong Tie adjustable post bases.
The posts are not even centered in the sonos tubes. There is a box full of unused Simpson Strong Ties on site that were purchased for the project as specified by NLC in their materials list. There are more than enough Simpson Strong Ties to appropriately attach all of the posts to the concrete footings.
Investigator’s Observation: I observed many of the post to not meet standards, being out of plumb and not installed to standards.
. . . .
Compliance Item: 20 - The joists are not attached with straps or hurricane ties to the carrying beams. Without doing more invasive investigation to the deck, we can’t determine what other violations may exist.
Investigator’s Observation: I observed joists that did not be adequately secured to the deck beam. Does not meet standards. Respondent should correct by appropriate means.
. . . .
Compliance Item: 22 - NLC did not install the Trex Transcend decking properly in accordance with the Trex Installation Guide
Investigator’s Observation: I observed multiple areas where the decking was installed too tightly together creating swelling at joints.
Following the issuance of the written directive, Respondent did not attempt to contact Complainant regarding the corrective work to be completed. After the deadline in the directive expired, Investigator Crosby was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a) and (b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).
Investigator Crosby testified that the deck did not meet the Registrar’s minimum standards. Specifically, Investigator Crosby stated that the support CMU piers were not replaced and the new deck should not have been built on the existing piers. Investigator Crosby noted that, when a contractor performs work that employs an existing surface or structure, the contractor accepts the surface and must ensure that the surface also meets the Registrar’s standards.
Complainant testified that the work performed was not that which they agreed upon with Respondent. Complainant also noted that Respondent made no attempt to contact his after the written directive was issued.
Mr. Dillon testified that the issued with the deck were merely cosmetic. Mr. Dillon denied that Respondent was contracted to rebuild the deck, but was only supposed to build an addition. Mr. Dillon asserted that he felt threatened by Complainant, and therefore was unwilling to return to the jobsite after the issuance of the written directive.
Administrative notice is taken of Respondent’s prior License record on February 21, 2023. Such prior License record reflects that Respondent’s License No. 337732 was first issued on April 21, 2022, and is active. Such prior License record also reflects that there were no other open or prior 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 did not complete the project in accordance with the plans without Complainant’s consent and did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the plans and applicable building code in violation of A.R.S. § 32-1154(A)(2)(a) and (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(B).
The evidence established that Respondent did not provide a written contract that included the required elements of a contract set forth in A.R.S. § 32-1158(A). 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 attempt 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 suspend Respondent’s License No. 337732 for a period of three days.
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 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 days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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, February 21, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
New Level Construction LLC
[email redacted]
Scott A Crozier
[email redacted]
Miles Crosby
[email redacted]
By: OAH Staff