ALJDEC - Licensing
2023A-00072-CHC-ROC · Registrar of Contractors · 2023-09-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John Smith,
COMPLAINANT
v.
JVAC Design LLC
License No. ROC 328023,
RESPONDENT
No. 2023A-00072-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 5, 2023
APPEARANCES: Complainant John Smith appeared on his own behalf. Jose Alba, Owner and Qualifying Party, appeared on behalf of Respondent JVAC Design LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
JVAC Design LLC (Respondent) is the holder of License No. 328023 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 16, 2021, John Smith (Complainant) entered into a contract with Respondent for the construction of a new home.
On or about November 22, 2022, the Registrar conducted a building confidence inspection at the request of Complainant. At that time, certain items were noted as failing to meet minimum building standards.
On or about January 19, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Jason Simpson. After a jobsite inspection, Investigator Simpson 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 April 30, 2023.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Hot water hear and piping poorly done.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 4: “Stains all over finished concrete”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 5: “Soft water system drain is pex tubing and not copper as per code;”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 7: “water spickets not functioning properly”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 8: “exterior dryer vent sticks open”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 9: “no caulking around trim rings around any spicket;”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 10: “stone on exterior not complete”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 11: “vapor barrier is exposed and deteriorating in many area.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 12: “siding not properly painted, caulked and is loose on many places”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 13: “wall-roof joint not sealed properly. can see light around eve when in attic”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 14: “water pump and pressure tank not properly sized for square footage of home”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
. . . .
Complaint Item 15: “sheath on porch post is deteriorating due to exposure”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 16: “exterior and interior doors not hung properly”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 17: “Doors hard to close or stick and exterior doors leak dirt and water”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 18: “interior walls not square or level”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 19: “interior and exterior paint poorly done and not complete in many areas;”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
. . . .
Complaint Item 20: “wall texture poorly done”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Poor paint and texture walls in master bedroom. Respondent should fix by appropriate means.
. . . .
Complaint Item 21: “baseboards not square or straight”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 22: “door trim not done properly”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 24: “master shower not grouted properly and no silicone/caulking was used in shower stall joints.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 25: “holes in grout through out house”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 26: “pocket doors stick are not trimmed out properly”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 27: “sliding closet doors not level and were hung improperly”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 28: “paint on windows, floors and other areas”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 29: “caulking of baseboards poorly done”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 30: “crown molding not completed in master bath center cabinet.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 31: “stove hood vent poorly constructed and vent unit does not sit flush”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should fix by appropriate means.
. . . .
Complaint Item 32: “toilets too close to wall, against code”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
Respondent should fix by appropriate means.
Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Simpson was notified the corrective work had not been completed.
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); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).
Investigator Simpson testified that as of the date of the hearing, complaint items 4, 7, 9, 10, 14, 15, 17, 18, 21, 22, 27, and 31 had not been corrected by Respondent.
Complainant testified that Respondent had taken months to perform some corrective work on the project, but Complainant was still in the same place as when he filed the complaint.
Mr. Alba testified that Respondent was going through a hard time and had attempted to replace the water pump on four different occasions. Mr. Alba did not disagree with the items Investigator Simpson identified as needing corrected.
Administrative notice is taken of Respondent’s prior License record on September 25, 2023. Such prior License record reflects that Respondent’s License No. 328023 was first issued on March 6, 2020, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint 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 failed to complete the project as outlined in the scope of work in the contract. Therefore, Complainant established that Respondent did not complete the project in violation of A.R.S. § 32-1154(A)(8).
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. 328023 for a period of five 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, September 25, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus, Interim Director
Registrar of Contractors
JVAC Design LLC
[email redacted]
John Smith
[email redacted]
Jason Simpson
[email redacted]
By: OAH Staff