ALJDEC - Licensing

2023A-03491-CHC-ROC · Registrar of Contractors · 2023-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Barrett Beaston,

COMPLAINANT

v.

Avante Construction LLC

License No. ROC 317877,

RESPONDENT

No. 2023A-03491-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 7, 2023

APPEARANCES: Aaron Lumpkin, Esq. appeared on behalf of Complainant Jason Barrett Beaston. Registrar of Contractors Investigator Mike Wiskow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit A and A(a) were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Avante Construction LLC (Respondent) is the holder of License No. 317877 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 26, 2023, Jason Barrett Beaston (Complainant) purchased a home built by Respondent and sold by Oak Street Properties, LLC.

On or about March 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. The jobsite inspection was performed on April 27, 2023.

Investigator Wiskow then issued a written directive on or about May 1, 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 May 23, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - Broken Roof Tiles, Vents, and Joints

Investigator’s Observation: There are several broken roof tiles, cut roof tiles and tiles covered in paint/stucco. Roof tiles shouldn't have paint on them, shouldn't have cut marks on them and shouldn't be cracked. Contractor should repair/replace roof tiles as necessary by appropriate means.

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.

Compliance Item: 4 - Incomplete Stucco. Exposed Styro Foam.

Investigator’s Observation: The dormer above the front door has incomplete stucco on the sides. There is styro-foam showing. The stucco should be competed and no styro-foam or metal should be visable. Contractor should repair/finish stucco by appropriate means.

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.

Compliance Item: 6 - Paint overspray, Stucco spills on entryway and back patio concrete.

Investigator’s Observation: There is paint and stucco on the front and rear flat work, thresholds and screens. These areas should be free of paint and stucco. Contractor should repair by appropriate means.

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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Sewer Back -up and flooding of bathrooms. Repair of Master bath.

Investigator’s Observation: There was no sewer back-up at the time of inspection. The master bath had some repairs in the works. Insufficient evidence.

Compliance Item: 2 - Main Water Line breaks/repair. Not to Code with material used.

Investigator’s Observation: There were no water line breaks at the time of inspection.

Compliance Item: 5 - Perimeter wall missing top caps. Holes, Cracks in brick.

Investigator’s Observation: The wall top cap had been repaired prior to inspection. Unable to determine the cause of some loose blocks on the left side of the home as a substantial section of CMU privacy wall had been either tipped over (vandalism) or blown over.

Compliance Item: 7 - Driveway in front of garage lifting causing a trip hazard and standing water.

Investigator’s Observation: The concrete driveway in front of the garage was slightly higher than the garage slab but substantial enough to create a tripping hazard.

Compliance Item: 8 - Main house bathroom toilet non-functional.

Investigator’s Observation: Repaired Prior to Jobsite Inspection

Compliance Item: 9 - Garage circuit potentially shorting and GFI popping when used.

Investigator’s Observation: There was no evidence of workmanship deficiencies concerning the electrical panel.

Compliance Item: 10 - One can light fixture in bedroom not working.

Investigator’s Observation: Repaired Prior to Jobsite Inspection

Compliance Item: 11 - Multiple switches in the house that are not for any lights or switches.

Investigator’s Observation: Another party did substantial electrical work after the respondent had finished the project. Respondent not responsible for this allegation.

Compliance Item: 12 - Multiple switches that should be dimmers and vice versa.

Investigator’s Observation: Another party did substantial electrical work after the respondent had finished the project. Respondent not responsible for this allegation.

Compliance Item: 13 - HVAC registers installed crooked.

Investigator’s Observation: Another party painted the interior of the home (removed and re-installed vents) after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 14 - Many wall, sheetrock anomalies need repair.

Investigator’s Observation: Another party painted the interior of the home after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 15 - Many door hinges with multi-colored screws.

Investigator’s Observation: Another party painted the interior of the home (removed doors and re-installed) after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 16 - Front bedroom light crooked and missing screws.

Investigator’s Observation: Another party painted the interior of the home after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 17 - Construction debris all over attic.

Investigator’s Observation: Cleaned up Prior to Jobsite Inspection.

Compliance Item: 18 - Paint overspray on entry tile and tile throughout the house.

Investigator’s Observation: Another party painted the interior of the home after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 19 - Paint overspray on windows, light fixtures HVAC registers, etc.

Investigator’s Observation: Another party painted the interior of the home after the respondent had finished. Respondent is not responsible for this allegation.

Compliance Item: 20 - 2 bath windows with weep holes on the side instead of the bottom.

Investigator’s Observation: Windows were supplied by Investor.

Investor directed window installation.

(All errors contained in original).

On June 12, 2023, Investigator Wiskow conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Wiskow found:

Compliance Findings:

Compliance Item: - 3 - Broken Roof Tiles, Vents, and Joints

Investigator’s Observation: There are several broken roof tiles, cut roof tiles and tiles covered in paint/stucco. Roof tiles shouldn't have paint on them, shouldn't have cut marks on them and shouldn't be cracked. Contractor should repair/replace roof tiles as necessary by appropriate means.

CJSI Observation: Not Completed (Respondent attempted gluing some tiles together.)

Compliance Item: - 4 - Incomplete Stucco. Exposed Styro Foam.

Investigator’s Observation: The dormer above the front door has incomplete stucco on the sides. There is styro-foam showing. The stucco should be competed and no styro-foam or metal should be visable. Contractor should repair/finish stucco by appropriate means.

CJSI Observation: Completed

Compliance Item: - 6 - Paint overspray, Stucco spills on entryway and back patio concrete.

Investigator’s Observation: There is paint and stucco on the front and rear flat work, thresholds and screens. These areas should be free of paint and stucco. Contractor should repair by appropriate means.

CJSI Observation: Not Completed

(All errors contained in original).

On June 15, 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(a), and A.R.S. § 32-1154(A)(22).

On or about July 6, 2023, Respondent timely submitted Answer to the Registrar.

On or about July 17, 2023, a Notice of Hearing was issued setting a hearing on August 28, 2023 at the Office of Administrative Hearings, an independent state agency. The Notice was mailed to Respondent at its address and email address of record.

After several continuances, a hearing was held on December 7, 2023.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

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

Investigator Wiskow testified that there were still roof tiles with paint, cut marks and cracks, as well as paint overspray and stucco spills on front entryway and back patio. at the time of his Compliance Jobsite Inspection.

Complainant testified that there were numerous additional deficiencies with Respondent’s work besides from what Investigator Wiskow directed Respondent to repair.

Further, Complainant testified and provided photographs of the significant issues with the roof as he hired EB Consulting to perform an inspection after the Compliance Jobsite Inspection. For example, there was paint overspray, chipped and cracked tiles, visible saw cuts, tiles not nailed down properly, hard wall flashings not lapped and improperly cut, valley pan and hog valley flashings were not installed properly. Complainant testified that the estimate to repair the roof was $29,888.00.

Also, Complainant testified that the paint overspray and stucco spills were about 65% resolved, and that the estimated cost to repair the same was $2,050.00.

Administrative notice was taken of Respondent’s prior License record on December 22, 2023. Such prior License record reflected that Respondent’s License No. 317877 was first issued on February 22, 2018 and was voluntarily cancelled on or about February 16, 2021. The record also reflected that there was one open complaint, namely the present complaint.

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 Respondent’s work was not in conformity with the Registrar’s standards. As mentioned above, there were three complaint items which were found to be completed in an unworkmanlike manner. 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 Respondent failed to fully complete the corrective work following the Directive being issued. While Respondent attempted to make the repairs he did not fully complete the same. 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. 317877 for a period of ten 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)(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, December 22, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Aaron M. Lumpkin

[email redacted]

[email redacted]

Avante Construction LLC

1506 N Banning

Mesa, AZ 85205

[email redacted]

By: OAH Staff