ALJDEC - Licensing

2023A-04214-CHC-ROC · Registrar of Contractors · 2023-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Fenter,

COMPLAINANT

Desert Of Eden Inc.

License No. ROC 284740,

RESPONDENT

No. 2023A-04214-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2023

APPEARANCES: Complainant Jennifer Fenter appeared on her own behalf. Vincente Magaña, Owner and Qualifying Party, appeared on behalf of Respondent Desert Of Eden Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Of Eden Inc. (Respondent) is the holder of License No. 284740 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 1, 2022, Jennifer Fenter (Complainant) entered into a contract with Respondent for an addition and remodel to her home.

On or about April 11, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein 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 7-10-23.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint #1 No power in garage due to live wires for exterior outlets and lighting being on the same breaker.

Inspector’s Observation: Electrical is not completed and there are exposed wires in the boxes on the exterior of the home.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.

Complaint #2 Office conversion not completed, leaving the room not to code.

Inspector’s Observation: Bedroom to office conversion still has to have a closet removed, window drywall completed and electrical completed per plan.

Complaint #3 Did not add can lighting (to plans), therefore room is not to code.

Inspector’s Observation: Can light fixtures were not completed per plan.

Complaint #4 Did not complete tile install – they have cut out the entryway of carpet to lay the hallway tile, but never came back to finish the flooring.

Inspector’s Observation: Verified floor tile in the office conversion has not been completed.

Complaint #5 Abandoned exterior finishing - no stucco on addition, garage or existing portion of the home.

Inspector’s Observation: Verified the foam, lath and stucco has not been completed.

Complaint #6 Missing HVAC register covers in: bedroom addition, kitchen, living room. Kitchen:

Inspector’s Observation: Verified the HVAC registers and proper air balancing has not been completed.

Complaint # 7 Incorrect countertop installed on island.

Inspector’s Observation: Complainant states the wrong countertop has been installed on the kitchen island and will provide a sample or paperwork substantiate.

Complaint # 8 Lighting not completed (to plans) – remove existing lights, patch drywall, install new can lights to plans and add pendant lights per plans.

Inspector’s Observation: I verified the electrical has not been completed.

Complaint #9 Toe Kick not installed.

Inspector’s Observation: Verified the kitchen cabinet toe kick, molding and trim has not been installed.

Complaint #10 Kitchen window frame torn out and not replaced.

Inspector’s Observation: Verified the kitchen window trim / casing has not been completed.

Complaint #11 Raw plaster patch, incomplete repairs.

Inspector’s Observation: Verified the kitchen splash drywall repairs are not completed.

Complaint #12 Backsplash not installed.

Inspector’s Observation: Verified the Kitchen backsplash material has not been installed.

Complaint #13 Spilled grout on tile.

Inspector’s Observation: Verified grout stains on the kitchen and living room tile that needs to be removed.

Complaint #14 Pencil markings for studs not removed/painted. We have lines on floor tile, ceiling and walls.

Inspector’s Observation: Verified pencil marks on the tile and drywall throughout.

• Respondent shall correct by the appropriate means.

Complaint #15 Poor drywall work – you can see the ridges of the drywall seams along walls/ceiling.

Inspector’s Observation: Verified the drywall finish from the addition does not match the existing wall well. In addition there is a bow in the wall in the living room.

• Respondent shall correct by the appropriate means.

Complaint # 16 Gap in base board install.

Inspector’s Observation: Verified gaps in the baseboard, living room and hall.

• Respondent shall correct by the appropriate means.

Complaint #17 Paint on tile edges.

Inspector’s Observation: Verified paint splatter on the tile in the living room and kitchen

• Respondent shall correct by the appropriate means.

Complaint #18 Unsupported front door threshold.

Inspector’s Observation: Verified the front door threshold has no support under the front of the [threshold].

• Respondent shall correct by the appropriate means.

Complaint #19 No exterior finishing or paint.

Inspector’s Observation: Verified the foam, lath, stucco and paint is not completed.

Complaint #20 Foundation over pour was not cleaned/cut away.

Inspector’s Observation: Verified concrete extends out past the exterior wall of the home.

• Respondent shall correct by the appropriate means.

Complaint #21 Front yard damaged during construction, agreed to mitigate by pouring a concrete walkway from porch to street which was not completed.

Inspector’s Observation: Verified yard damage. Complainant states the walkway was verbal agreement.

• Respondent shall correct by the appropriate means.

Complaint #22 Did not paint/prime closet doors.

Inspector’s Observation: Verified the painting is incomplete.

• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders.

Complaint # 23 Did not install closet doors.

Inspector’s Observation: Complainant states the bedroom to office closet conversion included adding an opening and doors into the hall.

Complaint # 24 Did not install door stop.

Inspector’s Observation: Verified door stops are not installed.

• Respondent shall correct by the appropriate means.

Complaint #25 Exhaust fan in laundry not installed.

Inspector’s Observation: Verified the fan is not completed.

• Respondent shall complete project per original contract agreement, plans and specifications.

Complaint #26 Laundry room door not installed.

Inspector’s Observation: Verified the door has not been installed.

• Respondent shall complete project per original contract agreement, plans and specifications.

Complaint #27 Poor paint job – patchy and not covering the wall.

Inspector’s Observation: Verified the painting is incomplete and there are sheen variances on the living room wall.

• Respondent shall correct by the appropriate means.

Complaint #28 Switches to abandoned lighting remain.

Inspector’s Observation: Verified the electrical work has not been completed.

Complaint #29 No exterior garage door

Inspector’s Observation: Verified the garage overhead door has not been installed.

• Respondent shall complete project per original contract agreement, plans and specifications.

Complaint # 30 Did not install self-closing hinges at entry door to home.

Inspector’s Observation: Verified the self-closing garage man door hinges have not been installed.

Following the issuance of the written directive, Respondent did not perform any further work on the project. After the deadline in the directive expired, Investigator Klein 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)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Klein testified that during the jobsite inspection, he observed the project was not complete and the written directive instructed Respondent to complete the project.

Complainant testified that the enclosure of the carport was intended to be a “safety valve,” so if the project went over budget, that part of the project could be removed to ensure the costs remained at the agreed upon amount. Complainant stated that the enclosure of the carport was the first part of the project that was completed. Complainant maintained that the last work Respondent performed on the project was on April 3, 2023. Complainant indicated that she paid Respondent $89,000.00 and paid $15,000.00 out of pocket for materials.

Mr. Magaña testified that Respondent did not complete the scope of work in the contract. Mr. Magaña acknowledged that the stucco and garage door were not complete. Mr. Magaña denied that Respondent was paid properly under the contract.

Administrative notice is taken of Respondent’s prior License record on October 10, 2023. Such prior License record reflects that Respondent’s License No. 284740 was first issued on May 3, 2013, and is active. Such prior License record also reflects that there were no other open or prior complaints 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 did not attempt to 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. 284740 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, October 10, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Desert Of Eden Inc.

[email redacted]

Jennifer Fenter

[email redacted]

Steve Klein

[email redacted]

By: OAH Staff