ALJDEC - Licensing

2023A-00209-CHC-ROC · Registrar of Contractors · 2023-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Collard,

COMPLAINANT

Western Pine Development Inc.

License No. ROC 065104,

RESPONDENT

No. 2023A-00209-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 25, 2023 and September 21, 2023, with the record held open until October 13, 2023 for the parties to submit written closing statements.

APPEARANCES: Ryan Bailey, Esq. appeared on behalf of Complainant Jason Collard. Ryan Sandstrom, Esq. appeared on behalf of Respondent Western Pine Development Inc. Investigator Miles Crosby appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Western Pine Development Inc. (Respondent) is the holder of License No. 065104 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 30, 2021, Jason Collard (Complainant) agreed to have Respondent install a new garage and addition at his residence. The total cost was $127,503.95.

On or about January 6, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.,

The Registrar assigned the complaint to Investigator Miles Crosby. The jobsite inspection was performed on January 24, 2023.

Investigator Crosby then issued a written directive on or about February 10, 2023, 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 March 31, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Contractor failing to be diligent in performing and completing the project. Initial completion date on original contract was 9/1/2021. Items paid for per draw schedule on 11/5/2021 including windows, exterior doors, garage door and siding have not been installed and completed. We have 2 of 3 windows installed that are incorrect and confirmation of a replacement garage door to be installed first week of 2/23. All other remaining items are still outstanding.;

Please reference case #2022-03701 for documentation and case history.

Investigator’s Observation: Due to the Stop Work Order and Respondents questions this has been amended for clarification of requirements. This complaint item is verified. It is not uncommon for unforeseen conditions to occur in the construction industry, however the timeline on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract. Respondent shall complete the project per original contract agreement, properly executed change orders, local building codes, professional industry standards and manufacturer's installation instructions.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

(All errors contained in the original).

On April 18, 2023, Investigator Crosby conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Crosby found:

. . .

The CJSI was preformed due to the noncompliance to the Written Directive, dated February 10, 2023, by the Respondent. The compliance date on the WD was March 31, 2023. Both parties were advised that the WD due date could be extended at the discretion of the ROC for any reasonable request. By March 31, 2023, no request had been made by either party for an extension.

It should be noted that the Respondent made the request to the Complainant to continue work after the expiration of the Written Directive date in order to complete the minimal amount of work left, approximately 3 weeks. The Complainant denied the request. Emails of the correspondence between the parties are included in the case file.

The Pencil Cite is for not complying with Directive deadline and for not diligently working to complete the job. There were some workmanship issues that are not cited due to the work being in progress and the Respondent may correct them prior to completion.

The Complainant was not willing to extend the Directive time and therefor no extension was granted. The Complainant has a previous case with Respondent regarding the same project which should be considered in this case as well. The previous case was closed, see 2022-03701, due to interference by the Complainant who took over the responsibility of Owner-Builder or acting as the General Contractor in the matter. The Complainant had called for an inspection(s) prior to the Respondent being ready for an inspection. It should be noted that this inspection was called for by the Complainant due to the lack of progress. Once the Complaint was made there was no further interference but the original case was close due to the Complainant listing themselves as the Builder on the Permit. Once the Complainant and Respondent navigated the new arrangement the Complainant filed another case several months later against the Respondent for not diligently working and lack of progress.

Once the ROC began this case the parties continued to disagree on payment and progress which does is not within the jurisdiction of the ROC and the Respondent was ordered through the Written Directive to complete the job per contract.

Compliance Findings:

Please reference case #2022-03701 for documentation and case history.

Investigator’s Observation: The Written Directive was not complied with and the work remains incomplete. The Respondent is will to continue working to complete the project but the Complainant has rejected the offer. The work could have been accomplished within the amount of time given and no extension was requested prior to the expiration of the Written Directive deadline.

Governing Rule: A.R.S. § 32-1154(A)(22).

(All errors contained in the original).

On May 1, 2023, 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(b), and A.R.S. § 32-1154(A)(22).

On or about May 16, 2023, Respondent timely submitted an Answer to the Registrar.

On or about May 25, 2023, a Notice of Hearing was issued setting a hearing on July 11, 2023 at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on August, 25, 2023 and on September 21, 2023.

At hearing, Investigator Crosby testified as to the Registrar’s involvement and the above timeline.

Investigator Crosby testified that there had been a stop work order, as after a change in the building plans, Complainant obtained a permit and listed himself as “owner/builder”.

Further, Investigator Crosby testified that even with the weather conditions in 2022, the project could still have been fully completed, and that while work had been progressing once the Written Directive was issued, Respondent requesting additional time at the 11th hour was unreasonable.

Investigator Crosby also testified that he did not inspect any of the work for workmanship issues.

Finally, Investigator Crosby testified that in the days leading up to the end of the Written Directive, the parties were discussing an extension of the same, but no formal request was made to him.

Complainant offered the testimony of himself and his wife, Tami Collard, and offered 22 exhibits into evidence.

Complainant testified that while the project initially was for the garage to be built, later a bonus room was added to the project.

As to the permits, Complainant testified that the town had pulled the permit because the plans did not match what was being built. Thus, Complainant decided to re-apply for the permit because Respondent had not done so.

Also, Complainant testified that from the issuance of the Written Directive through March 31, 2023, Respondent did not complete anything as the siding and roofing were not completed, and items that he had previously paid for were unaccounted.

Complainant further acknowledged that there were some issues caused by the weather, but that Respondent still could have completed the work on the interior of the home.

Tami Collard testified as to the issue with the permits. Mrs. Collard also testified that they applied for the second permit when the new plans were submitted to move the project along. Further, Mrs. Collard testified that Dave Morris was only at the jobsite once during the Directive period, and did not believe that the project could be completed in a couple more weeks as she believed that Respondent did not even know what actions would be left to complete the project.

Respondent offered the testimony of David Morris and Dane Porter and offered 9 exhibits into evidence. Mr. Morris testified that he and Mr. Porter formed a partnership in 2020, whereby he would be the general contractor in the Pinetop area. Mr. Morris testified generally that during the timeframe for the construction, it was hard to obtain not only the products, but licensed and reliable workers due to the COVID-19 pandemic. Mr. Morris also testified that he also ran into delays to due weather, whereby his subcontractors would be “skittish” about setting up scaffolding in the snow. Mr. Morris testified further that he could have shut down other jobs, but that would have caused problems for those projects.

Mr. Morris testified that as to the issue with the plans and the permit, that there was a delay in obtaining the new permit for the revised plans due to the change in leadership at the City of Pinetop. Because of this, inspections were delayed and the request for the new permit became lost and ultimately delayed. Mr. Morris testified that he could have hounded the city and called every day to check the status, he did not, but once the permit was re-issued he started contacting the other subcontractors to start scheduling the same.

Mr. Porter testified that he had been involved with Respondent for 25 years. He testified that he was not aware that he needed to submit a written request to Investigator Crosby to obtain written permission to extend the Directive period, and that Investigator Crosby informed him that he would work with Respondent if the job was progressing.

The record was held open in this matter until October 13, 2023 for the parties to submit written closing arguments.

Complainant argued that during the corrective work period, Complaint did not deny access nor interfere with Respondent and that Respondent failed to comply with the Written Directive and therefore was in violation of A.R.S. § 32-1154.

Respondent argued that the delays faced on the project were reasonable given the circumstances surrounding the project and that no discipline should be taken against its license.

Administrative notice was taken of Respondent’s prior License record on October 30, 2023. Such prior License record reflected that Respondent’s License No. 065104 was first issued on May 12, 1986, and reflected that there was one open complaint, namely the present complaint, and two resolved/settled cases.

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 Vazanno 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 preponderance of the evidence established that violated of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B). While the tribunal sympathizes with the roadblocks which kept popping up during this construction, such as delays in obtaining materials, availability of workers, weather delays, and even the delays with the City of Pinetop, the testimony and evidence provided demonstrated that the project was not completed within an acceptable time period. Specifically, the prudence and diligence portion of the rule was not met, as Mr. Morris could have followed up more with the City of Pinetop, and perhaps could have obtained additional subcontractors from other parts of Arizona to help complete the project. Further, pursuant to the parties’ contract, this job was to only take three months. For the project to not be fully completed over two years later is unacceptable.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Per Investigator Crosby’s testimony, there was no written request to extend the Directive beyond the 21 days initially provided. 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. 065104 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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)(7), 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, October 30, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Ryan D. Bailey, Esq.

Stone Canyon Law

502 S. College Avenue, Suite 205

Tempe, AZ 85281

[email redacted]

Ryan Sandstrom

Copper Canyon Law, LLC

43 E. 1st Ave

Mesa, AZ 85210

[email redacted]

By: OAH Staff