ALJDEC - Licensing

2023A-04976-CHC-ROC · Registrar of Contractors · 2023-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steve Lane Fernkopf,

COMPLAINANT

v.

CYPRESS CONSTRUCTION INC

License No. ROC 330367,

RESPONDENT

No. 2023A-04976-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 29, 2023

APPEARANCES: Complainant Steve Lane Fernkopf appeared via Google Meet on his own behalf. Investigator Arlo Houston appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Cypress Construction Inc. (Respondent) is the holder of License No. 330367 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 25, 2022, Steve Lane Fernkopf (Complainant) agreed to have Respondent remodel his residence. The total cost was to be $76,725.00.

On or about April 27, 2023, the Registrar received a Complaint against Respondent from Complainant incomplete work with respect to project.

The Registrar assigned the complaint to Investigator Arlo Houston. The jobsite inspection was performed on May 16, 2023.

Investigator Houston then issued a written directive on or about May 30, 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 June 19, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

The respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive that are building permit required.

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 an updated version of a contract template to the Registrar that complies with the provisions of A.R.S. § 32-1158.

The respondent is to complete work per contract(s)/agreement(s) between parties.

Compliance Item: 1 - "The renovation contract was originally scheduled to begin within 5 weeks after it was signed by both parties on July 25, 2022, and had a projected project duration of 4-5 weeks. However, it has now been seven and a half months and the project has not been completed.; We provided a 50% down payment of $2,887.50 for windows on October 17, 2022, with an expected delivery time of 6-8 weeks. However, it has been over 6 months now, and we are still awaiting their arrival. Despite repeated requests for information, we do not know when the windows were actually ordered. Finally, we were informed that they would be shipped on 4/24. We have been trying to get confirmation that they were indeed shipped, but the contractor has not responded to our requests for information.; Until the aforementioned windows are installed, the remainder of the work in the master bathroom cannot be completed, including completion of tiling, drywall texturing, lighting, and installation of the bathtub which we had to order and has been sitting in our living area for over two and a half months. Additionally, there is some uncompleted work on the bathroom cabinets.; The contract also included outside work, including roof recoating, replacing eight posts with brackets, fixing a garage door header, and reworking the downspout drainage system. At present, the outside work, except for the roofing, is incomplete. We have repeatedly asked for these items to be completed and have been ignored. It has been over 7 months with no promise of when it will be completed."

Investigator’s Observation: Verified. The complainant advised at time of JSI that the roof work and post work was completed to their satisfaction.

However, upon inspection at this JSI I observed that:

-no building permit obtained for remodeling work

-exterior work,

-Many areas of exterior work remain incomplete to include fixing garage door header and gutter system work

-interior bathroom remodel work incomplete

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

(All errors contained in the original)

On June 20, 2023, Investigator Houston conducted a Compliance Jobsite Inspection. He noted the following with respect to the same:

Compliance Findings: I proceeded to inspect the item(s) on the Written Directive and I found the following:

. . .

Investigator’s Observation: Work per contract remains incomplete and no building permit obtained.

On June 27, 2023, 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) - R4-9-108(b); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about July 10, 2023, Respondent timely filed an Answer with the Registrar.

On or about July 24, 2023, a Notice of Hearing was issued setting a hearing on August 29, 2023, at the Office of Administrative Hearings, an independent state agency.

Also on July 24, 2023, the tribunal issued an Order containing the Google Meet information for the hearing.

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

Investigator Houston testified that Respondent failed to appear at the Jobsite Inspection, and apparently sent a representative to appear at the conclusion of the jobsite inspection.

Further, Investigator Houston testified that the work was not completed and that there was no permit obtained for the plumbing, electrical and window installation of the project. However, Investigator Houston testified that it appeared that Respondent applied for a building permit around August 9, 2023.

Finally, Investigator Houston testified the time provided in the Written Directive was sufficient to move the project forward or for Respondent to act in good-faith. However, Investigator Huston testified that at the Compliance Jobsite Inspection, he noticed that some miscellaneous work had been completed, but there was no reasonable effort made to complete the remodel of the bathroom.

Complainant testified on his own behalf. He testified that Respondent had completed all of the work remaining on the outside of the home, but that the windows still had not been installed in the master bathroom and the that also had prevented the resto of the master bathroom work from being completed.

Further, Complainant testified that he was made aware that on August 8, 2023, a permit had been applied for, but did not know the status of the same. Because of this, Complainant testified that he was worried that the lack of permitted work could affect the resale value.

The record also reflected that 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.

Administrative notice was taken of Respondent’s prior License record on September 12, 2023. Such prior License record reflected that Respondent’s License No. 330367 was first issued on August 27, 2020, and reflected that there were two open complaint, one of which was 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 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 preponderance of the evidence established that Respondent failed to timely obtain a building permit in violation of A.R.S. § 32-1154(A)(2)(b). Also because of this failure, Respondent was in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

There was no evidence provided that the contract between the parties failed to meet the minimum elements of a contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to fully complete the corrective work following the Directive being issued. Based upon the testimony at the hearing the master bathroom still remains in an incomplete state, due to the windows not being installed. 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. 330367 for a period of fifteen 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, September 12, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Cindy Casaus

Interim Director

Registrar of Contractors

CYPRESS CONSTRUCTION INC

[email redacted]

Steve Lane Fernkopf

[email redacted]

By: OAH Staff