ALJDEC - Licensing
2023A-03911-CHC-ROC · Registrar of Contractors · 2023-08-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ashley Vandervort,
COMPLAINANT
v.
Wiens Construction Inc.
License No. ROC 126743,
RESPONDENT
No. 2023A-03911-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 26, 2023
APPEARANCES: Complainant Ashley Vandervort was represented by Josh Morganstern who appeared via Google Meet. Registrar of Contractors Investigator Robert DiAlto appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Wiens Construction Inc. (Respondent) is the holder of License No. 126743 issued by the Arizona Registrar of Contractors (Registrar).
On or about March 12, 2022, Ashley Vandervort (Complainant) signed a contract with Respondent a patio and surrounding deck in the backyard as well as a shade structure.
On or about April 23, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Robert DiAlto. The jobsite inspection was performed on April 26, 2023. The jobsite notes indicated the following:
Complaint Item: 1-Improper installation of shade structure.
Investigator’s Observation: I observed a pergola type shade structure at the backyard of the North West side of the residence. Footing pads, post bases, posts and beams are in place. Post beam connection hardware appears to be incomplete and pergola slats/rafters are not installed. The structure is bare wood and it appears unfinished and incomplete.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 2-Incorrect grade and slope.
Investigator’s Observation: I was unable to determine grade or slope issues and the project does not appear to have progressed enough to allow for rough and final grading.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 3-Improper installation of backyard deck, leaving the deck structurally unsound.
Investigator’s Observation: I observed an incomplete deck/shade structure at the back patio area of the residence. I was not able to locate or identify any plans or specification or Permit on site at time of inspection.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 4-Improper installation of sprinkler system.
Investigator’s Observation: I identified a few locations where irrigation lines appear to be in place and may be incomplete. The overall areas of the backyard appear to have not been prepared for construction.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 5-Substandard stuccoing.
Investigator’s Observation: I did not observe any stucco patching or repairs. The project appears to have not advanced to this stage of construction life cycle at time of the job site inspection. Exterior sheeting is exposed and no moisture barrier/wrap, foam or lath have been installed.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 6-Unsafe and unclean conditions left in backyard.
Investigator’s Observation: I observed several areas of debris, construction materials and overgrowth at the back yard of the residence. There are several locations where 1/2” steel rebar extends up from concrete pads. They are approximately 8” 12” in length and I did not identify any rebar identification/safety caps installed or onsite.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 7-Unfinished and substandard completion of interior and exterior walls leaving electrical wiring exposed.
Investigator’s Observation: I observed an exposed Romex type electrical wiring and single gang electrical outlet box and receptacle that is nailed to a post at the Kitchen North wall.
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Complaint Item: 8-Several openings left in walls and around windows that have allowed water and bugs to get inside of home.
Investigator’s Observation: This complaint item is the same as complaint item #5
Governing Rule: ARS §32-1154 (A)(1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
(All errors contained in the original).
On May 17, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1).
On or about May 31, 2023, Belinda Wiens e-mailed an Answer to the Registrar, explaining that her husband Chris Wiens, Respondent’s Qualifying Party, passed away unexpectedly on January 1, 2023.
On or about June 9, 2023, a Notice of Hearing was issued setting a hearing on July 26, 2023 at the Office of Administrative Hearings, an independent state agency.
The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
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 DiAlto testified as to his involvement and the above timeline.
Investigator DiAlto testified that on May 12, 2023, he received a voicemail from Mrs. Wiens and eventually spoke with her and recommended that she inform the Registrar.
In addition, Investigator DiAlto testified that during the jobsite inspection, Respondent had an attorney present but that the attorney did not notify anyone that Mr. Wiens had passed.
Further, as part of his investigation, Investigator DiAlto testified that the backyard had remained in the condition it did for quite some time as there had been no communication between the parties since towards the end of 2022.
Investigator DiAlto also testified that he asked the Registrar’s General Counsel as how to proceed and they recommended to not issue a Written Directive and to just issue a Citation.
Complainant did not appear, an offered no testimony.
Administrative notice was taken of Respondent’s prior License record on August 9, 2023. Such prior License record reflected that Respondent’s License No. 126743 was first issued on August 27, 1997, and reflects that there was 1 open complaint, namely the present complaint. The license was also revoked as of June 30, 2023
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 has not established that Respondent’s abandoned the project. Complainant presented no evidence as to the nature of the conversations prior to Mr. Wiens’ untimely death. Without the same, there can be no abandonment. Therefore, Complainant did not establish that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar close complaint 2023-09911.
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, August 9, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Wiens Construction Inc
248 E Sagebrush St
Gilbert, AZ 85296
[email redacted]
Joshua Morganstern
8719 E San Alberto, Suite 100
Scottsdale,AZ 85258
[email redacted]
By: OAH Staff