ALJDEC - Licensing

2023A-00329-CHC-ROC · Registrar of Contractors · 2023-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dina Scalone,

COMPLAINANT

v.

Desert Sun Customs & Restoration LLC

License No. ROC 240872,

RESPONDENT

No. 2023A-00329-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 21, 2023

APPEARANCES: Complainant Dina Scalone appeared on her own behalf. Casey Levi Conrad, Owner and Qualifying Party, appeared on behalf of Respondent Desert Sun Customs & Restoration LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Sun Customs & Restoration LLC (Respondent) is the holder of License No. 240872 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 21, 2022, Dina Scalone (Complainant) entered into a contract with Respondent for the renovation of an attic area into a livable space.

On or about January 13, 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 Gregory Johndrow. After a jobsite inspection, Investigator Johndrow 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 March 1, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

Complaint Item 1: “Entry to the attic is too small and you cannot enter without hitting your head”

Investigator’s Observations: Verified. The headroom and the walk line for the spiral staircase are obstructed by the opening in the existing ceiling. The conditions are a code compliance issue and this work was not permitted with the City of Tucson. The Respondent is to obtain any and all required building permits 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.

. . . .

Complaint Item 2: “Attic floor does not match all around and hatch door was never completed.”

Investigator’s Observations: Verified. The flooring used for the attic hatch door was installed in the opposite direction of the surrounding flooring and the opening has been poorly finished. Additionally, there is no handle to allow for the removal of the hatch door from inside the attic.

. . . .

Complaint Item 3: “Kitchen cabinet is coming apart on the bottom”

Investigator’s Observations: Verified. There is damage to the base of the side panel on the tall kitchen cabinet.

Following the issuance of the written directive, Respondent advised Investigator Johndrow that it had not received the written directive. Complainant agreed to an extension of the deadline to complete the corrective work.

On or about March 9, 2023, Investigator Johndrow issued an amended written directive with a new deadline of March 22, 2023.

After the deadline in the amended directive expired, Investigator Johndrow 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)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); and A.R.S. § 32-1154(A)(22).

Investigator Johndrow testified that as of the morning of the hearing, there were two permits for the project, one in a void status and one that needed resubmitted.

Complainant testified that the opening into the attic was too small and one could not enter the attic without hitting their head. Complainant also noted the flooring on the hatch was running in the opposite direction as the rest of the flooring.

Mr. Conrad testified that permits take six to ten weeks to be issued and it was not possible to obtain the permit within the deadline in the directive. Mr. Conrad noted that the flooring on the hatch was running the opposite direction because, following modifications in the attic, Respondent was short on matching materials.

Administrative notice is taken of Respondent’s prior License record on September 11, 2023. Such prior License record reflects that Respondent’s License No. 240872 was first issued on April 9, 2008, and expired on May 1, 2023. Such prior License record also reflects that there were no other open complaints and two prior complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s expired license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

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 applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded applicable building code 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) and (B).

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. 240872 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 11, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

Gregory Johndrow

[email redacted]

Desert Sun Customs & Restoration LLC

[email redacted]

Dina Scalone

[email redacted]

By: OAH Staff