ALJDEC - Licensing

2023A-04796-CHC-ROC · Registrar of Contractors · 2024-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Erik Jensen,

COMPLAINANT

v.

Four Star Contracting LLC

License No. ROC 328209,

RESPONDENT

No. 2023A-04796-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 5, 2024

APPEARANCES: Complainant Erik Jensen appeared via Google Meet on his own behalf. Robert Parra appeared on behalf of Respondent Four Star Contracting LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Four Star Contracting LLC (Respondent) is the holder of License No. 328209 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 16, 2022, Erik Jensen (Complainant) agreed to have Respondent install an addition and play pool at his residence. The total cost was $79,500.00.

On or about April 29, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Doug Barrett. The jobsite inspection was performed on June 13, 2023.

Investigator Barrett then issued a written directive on June 13, 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 07-07-2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 – New master exterior doors not installed.

Investigator’s Observation: Verified. This item refers to French doors that are supposed to be installed on the north wall in the master bedroom. Currently there is a solid wall/drywall and no doors installed. Contractor should correct by appropriate means per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 4 – Flooring in mast bedroom not finished/replaced.

Investigator’s Observation: Verified. I observed areas of the flooring in the master bedroom not completed. The Respondent stated he will complete the flooring after he installs the doors. Contractor should correct the flooring by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 5 – Hole made in master bath wall plastered but not sanded or painted.

Investigator’s Observation: Verified. I observed a patch behind the master toilet that had not been textured or finished/painted. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 6 – North wall/ceiling of master bedroom not painted.

Investigator’s Observation: Verified. I observed the north wall in the master bedroom where the closet was removed and the walls/ceiling has not been repaired, textured or painted. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 7 – Molding and baseboards in master bedroom not installed.

Investigator’s Observation: Verified. I observed missing baseboards in the master bedroom. Contractor should correct by appropriate means per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 8 – Door between master bedroom/addition not installed.

Investigator’s Observation: Verified. I observed the doorway framed but no door, casing or trim was installed. Contractor should correct by appropriate means per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 11 – Library molding and baseboards not installed.

Investigator’s Observation: Verified. I observed missing baseboards and crown molding in the library. Contractor should correct by appropriate means per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 13 – Exterior patio/landing on north wall not installed.

Investigator’s Observation: Verified. There was no patio/landing installed.

The Respondent stated he will add the patio once the French doors are installed. Contractor should correct by appropriate means. Per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 14 – Addition missing bird block.

Investigator’s Observation: Verified. I observed one section at the upper right of the addition, as looking from the backyard, that did not have bird block/wood installed. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 16 – Addition needs connected to panel.

Investigator’s Observation: Verified. This item refers to a 200 amp main panel not being installed. I observed the original 150 amp panel installed. The contract states, “New 200 amp service to be included.” Contractor should correct by appropriate means per the contract.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 – No permits on site.

Investigator’s Observation: Unverified. The respondent had the permits from the City of Mesa with him during the inspection.

Governing Rule: N/A

Compliance Item: 2 – Master closet interior wall needs finishing. Master closet doorway walls not straight. Master bedroom closet shelves need cleaning. Master closet doors not installed.

Investigator’s Observation: Unverified. The Complainant stated these items have been completed with the exception of the not straight wall which they stated they will accept as is and no need for the Respondent to correct.

Governing Rule: N/A

Compliance Item: 9 – Window on west wall of master bedroom not removed/replaced with wall.

Investigator’s Observation: Unverified. The complainant stated this item was corrected.

Governing Rule: N/A

Compliance Item: 10 – AC between addition and bedroom /dining room not installed.

Investigator’s Observation: Unverified. The complainant stated this item was corrected.

Governing Rule: N/A

Compliance Item: 12 – Pool drawings/plans non-existent. Pool access ramp not ADA compliant. Cool decking not installed. Pool needs to be finished (plaster, tile, etc). Pool needs finishing around border. Pool light not installed.

Investigator’s Observation: Unverified. The Respondent had the original pool plans with him which did not match the current design that was built. The Complainant and Respondent agreed verbally to change the configuration so an access ramp could be added. There are no change orders or modified plans for the changes. I am unable to determine if the pool is or is not built per their agreement. I explained that I could enforce the original contract and plans but the Complainant does not want that design built. The Complainant will work towards a resolution outside the Registrar for the pool construction.

Governing Rule: N/A

Compliance Item: 15 – Addition missing nails in rafter hangers. Addition missing nails in joist hangers. Addition joist not properly secured. Addition anchor bolts not secured (loose nuts). Addition missing exterior plywood. Addition missing window framing. Addition attic access reframed. Addition roof needs finishing.

Investigator’s Observation: Unverified. The Complainant stated all of the above items have been completed.

Governing Rule: N/A

Compliance Item: 17 – Missing pathway from side gate to addition.

Investigator’s Observation: Unverified. The contract does not include a pathway from the addition to the gate. No correction required.

Governing Rule: N/A

On July 19, 2023, Investigator Barrett conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Barrett found:

Compliance Jobsite General Notes: The Complainant was present but no one from the Respondent was present.

Compliance Findings: The following items were not completed per the written directive: Items #3, #4, #5, #6, #7, #11, and #16.

The following items were completed per the written directive: Items #8, #13, and #14.

(All errors contained in the original).

On August 2, 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 August 15, 2023, Respondent timely submitted Answer to the Registrar.

On or about August 29, 2023, a Notice of Hearing was issued setting a hearing on October 6, 2023 at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on January 5, 2024.

At hearing, Complainant testified on his own behalf. He testified that only complaint items 8, 13, and 14 were completed.

Complainant testified further that Respondent had unlimited access to the outside of the project, but did request that Respondent provide advance notice as to the work in the bedroom as Complainant would be using the same to sleep in the mornings.

Finally, Complainant testified that while the project was to be completed by November 2022, he waited until April 2023 to file the complaint to give Respondent additional time to complete the project.

Robert Parra testified that he admitted that only items 8, 13, and 14 were completed, but asserted that he was denied access to make the repairs because Complainant requested odd hours for them to complete the work. Mr. Parra testified for example, that Complainant requested that he not start until 9:00 a.m., and that Complainant told him not to make too much noise at 7:00 a.m. while working on the outside.

Mr. Parra also testified that it was difficult to get samples of the flooring and molding to match, which was why those items remained unfinished.

Finally, Mr. Parra testified that this was the only project he has had an issue with and the stress caused him to be admitted to the hospital for a period of time.

Administrative notice was taken of Respondent’s prior License record on January 19, 2024. Such prior License record reflected that Respondent’s License No. 328209 was first issued on March 20, 2020, and 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. The master bedroom doors were not installed; the flooring in the master bedroom was not finished, there was a hole in the master bathroom wall which was not sanded/painted; the north wall and ceiling of the master bedroom was not painted; molding and baseboards in the master bedroom and library were not installed; the door between the master bedroom and addition was not installed; the patio/landing was not installed; there was no bird block installed; and the 200 amp electrical panel was not installed. 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 complete the corrective work following the Directive being issued. There was no dispute that items 8, 13 and 14 were completed. However, the tribunal finds that Complainant did not unreasonably deny access to Respondent to complete Directive items 3, 4, 5, 6, 7, 11, and 16. 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. 328209 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, January 19, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Four Star Contracting LLC

12717 W Desert Flower Rd

Avondale, AZ 85392

[email redacted]

Erik Jensen

1244 S. Date St.

Mesa, AZ 85210

[email redacted]

By: OAH Staff