ALJDEC - Licensing

2022A-11154-CHC-ROC · Registrar of Contractors · 2023-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Allison Coker,

COMPLAINANT

v.

NewBuild LLC

License No. ROC 290625,

RESPONDENT

No. 2022A-11154-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 9, 2023

APPEARANCES: Complainant Allison Coker appeared on her own behalf. Ron Peetz, Member, appeared on behalf of Respondent NewBuild LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

NewBuild LLC (Respondent) is the holder of License No. 290625 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 18, 2021, Allison Coker (Complainant) entered into a contract with Respondent for the purchase of a new home.

On or about December 5, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with the property.

The Registrar assigned the complaint to Investigator Arlo Houston. After a jobsite inspection, Investigator Houston 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 January 30, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - “There are several areas of the driveway that are sinking”

Investigator’s Observation: Verified. Upon inspection at this JSI I observed for:

-Excessive gap between pavers in field: pavers with a gap greater than 3/16” in field pavers

-More than 1/8” difference in height between adjacent pavers in field pavers

-Excessive deviations, dips or sags over short distances: areas of deviations, dips or sags over short distances in multiple areas to include West side of driveway approaching house, approaches to both garage doors, and in area in front of garage in turnaround area.

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 to address the items.

After the deadline in the directive expired, Investigator Houston performed a compliance jobsite inspection. During the inspection, Investigator Houston noted that the work done for the compliance item did not meet the Registrar’s workmanship standards.

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 Houston testified that during the prehearing inspection there were still areas of more than 1/8” height difference between adjacent pavers and gaps greater than 3/16” in the field.

Complainant testified that she started contacting Respondent regarding the issues with the driveway in June 2022. Respondent attempted to resolve the matter in the following months, but nothing was done to address the root cause of the problem. Complainant also noted that she allowed Respondent to perform work after the compliance jobsite inspection in an effort to get the project corrected.

Mr. Peetz testified that it had always been and remained his objective to make Complainant happy. Mr. Peetz stated that Appellant wanted Respondent to remove every brick from the driveway and start over, which he believed to be unnecessary. Mr. Peetz questioned Investigator Houston’s use of a 3 foot or 6 foot level to determine whether the tiles were not level.

Administrative notice is taken of Respondent’s prior License record on May 23, 2023. Such prior License record reflects that Respondent’s License No. 290625 was first issued on May 16, 2014, 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’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 appropriately 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. 290625 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, May 24, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Arlo Houston

[email redacted]

NewBuild LLC

[email redacted]

Allison Coker

[email redacted]

By: OAH Staff