ALJDEC - Licensing
2023A-05832-CHC-ROC · Registrar of Contractors · 2024-08-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sarah Bartelt and
Michael Bartelt,
COMPLAINANTS,
v.
Tierra Bonita Construction, LLC
License No. ROC 324842,
RESPONDENT.
No. 2023A-05832-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 8, 2024
APPEARANCES: Complainants Sarah Bartelt and Michael Bartelt appeared on their own behalf. Alex Martinez appeared on behalf of Respondent Tierra Bonita Construction, LLC. Arizona Registrar of Contractors Investigator Jim Dimond appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record
FINDINGS OF FACT
Tierra Bonita Construction, LLC (“Respondent”) is the holder of License Number 324842 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about March 20, 2021, Sarah Bartelt and Michael Bartelt (“Complainants”) contracted with Respondent for Respondent to install pavers in their back yard, as well as construct a pergola attached to the home, and construct a retaining wall. The contract price was $14,920.00. Complainants have paid Respondent in full.
On or about May 19, 2023, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Jim Dimond. After a July 17, 2023 Jobsite Inspection, at which both parties were present, Investigator Dimond issued a Written Directive to Respondent dated July 24, 2023, 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 August 18, 2023.
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Patio does not have the structural pieces attached such as hurricane straps Investigator’s Observation: At the beam end of the new cover, the required H-2-5 straps are not present.
There are some decorative clips present but the rating and code acceptability of these clips is unknown.
A permit has not been obtained and the structure has not been inspected for code compliance.
The respondent is to obtain the building permit and comply with any requirements set by the county.
Complaint Item: 2 - Wood and nails are separating
Investigator’s Observation: The angled support members at the posts are not tight to the post surface and therefore are not providing any stability.
The respondent is to correct the condition in an appropriate manner.
Complaint Item: 3 - Brick pavers are falling off steps
Investigator’s Observation: At the edges, the pavers are not secured and are falling off.
The respondent is to correct the condition in an appropriate manner.
Complaint Item: 4 - Brick pavers are sinking down
Investigator’s Observation: In the area of the posts, the pavers are indeed sinking
The respondent is to correct the condition in an appropriate manner.
Complaint Item: 5 - No permit was attained
Investigator’s Observation: The respondent admitted that the work was performed without a permit.
The respondent is to submit the as built specifications and obtain a permit.
Any requirements for changes made by the county are the responsibility of the respondent
Complaint Item: 6 - Drainage above was not done correctly
Investigator’s Observation: It is unclear what the specific allegation is however, the water staining present at the end of the joists indicates that the water is coming off of the roof and wicking back on the joists.
The respondent is to ensure that the covers drains properly in an appropriate manner.
Complaint Item: 7 - Patios beams are incorrect size (too small)
Investigator’s Observation: The beams may not be too small but may be under supported.
Once a permit is obtained, the load calculations will determine beam size and/or support post spacing requirements.
The respondent is to obtain the permit and comply with the requirements of YCDS in an appropriate manner.
After the August 18, 2023 deadline for compliance with the Written Directive, Investigator Dimond ascertained that Respondent had not complied with the Written Directive. Thereafter, Investigator Dimond forwarded the Complaint to the Registrar’s Legal Department. 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), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).
Respondent timely filed a written Answer to the Citation and the matter was referred to the Office of Administrative Hearing, an independent State agency, for an administrative hearing.
The hearing of this matter was initially scheduled to convene on October 31, 2023, at 1:00 p.m. On the date and time set for hearing, Complainant Sarah Bartelt appeared on her own behalf. Alex Martinez appeared on behalf of Respondent. Investigator Dimond appeared as a witness. The parties participated in a prehearing discussion outside of the presence of the Administrative Law Judge. As a result of that discussion, the parties entered into a settlement agreement, however, needed additional time in which to execute the terms of that agreement. The matter was set for a written Status Update on January 22, 2024.
On December 5, 2023, Complainants filed a Status Update expressing concern with the lack of progress Respondent had made toward the terms of the parties’ settlement agreement.
The matter was set for a continued hearing on February 13, 2024. On February 13, 2024, at 9:00 a.m., Mrs. Bartelt appeared on her own behalf. Mr. Martinez appeared on behalf of Respondent. Investigator Dimond appeared as a witness. Prior to the commencement of the hearing, the parties informed the Tribunal that some progress toward resolution had been made in that Respondent had applied for a permit with the county and had hired a draftsman to help in the process. However, the permitting process was not yet complete, and after obtaining the permit, work would need to be performed. The parties requested that this matter be continued again and reset for another written Status Update in six (6) weeks. The matter was set for a written Status Update on April 15, 2024.
On April 15, 2024, Complainants requested a continuance of forty-five (45) days in order to provide Respondent with another opportunity to correct its work. The matter was reset for a written Status Update on May 31, 2024.
On May 31, 2024, Complainants advised the Tribunal that Respondent had not performed pursuant to the parties’ agreement. The matter was set for continued hearing on August 8, 2024, at 1:00 p.m. Complainant Michael Bartelt appeared on his own behalf. Mr. Martinez appeared on behalf of Respondent. Investigator Dimond appeared as a witness.
Investigator Dimond testified consistently with the findings contained in his Jobsite Inspection notes and the Written Directive. Investigator Dimond testified that there is a permit application on file with the county with a project number of 24-002587. On April 3, 2024, a correction letter with redlines was issued to Respondent with seven (7) items to be corrected. On April 18, 2024, an updated plot plan was still required to be filed with the county. However, a permit has been issued since then, with Permit Number Res-24-000599. Although the permit has now been issued, Investigator Dimond testified that Respondent is still not in compliance because the project is not in compliance with the county requirements and has not passed inspection.
Mr. Bartelt agreed with Investigator Dimond’s testimony, and also testified that Complainants have attempted to contact Respondent multiple times over the past several months with no response.
Mr. Martinez did not dispute any of Investigator Dimond’s testimony or his findings. Mr. Martinez acknowledged not responding to Complainants’ communications, stating that he did not “want to give excuses.” Mr. Martinez testified that he attempted to retain an engineer, however, that process “got too complicated.”
Administrative notice is taken of Respondent’s prior License record on August 23, 2024. Such prior License record reflects that Respondent’s License Number 324842 was first issued on June 19, 2019, and is active. Such prior License record also reflects that there is only the instant open Complaint, one disciplined complaint, and one resolved/settled complaint against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent failed to timely obtain a permit for the project, performed work without a permit, and then after obtaining the permit, failed to make the required corrections and failed to pass inspection. Therefore, Complainants established that Respondent departed from or disregarded a building code in a material respect that was prejudicial to Complainants, in violation of A.R.S. § 32-1154(A)(2)(b).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants established that Respondent did not complete the project in a professional and 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 complete the corrective work following the Written Directive being issued and acknowledged such. Further, Respondent failed to establish any affirmative defense to establish valid justification for such failure. Therefore, Complainants 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 Number 324842 for a period of ten (10) 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 (30) 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, August 26, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Sarah Bartelt
[email redacted]
Tierra Bonita Construction, LLC
[email redacted]
Jim Dimond
[email redacted]
By: OAH Staff