ALJDEC - Licensing

2023A-07070-CHC-ROC · Registrar of Contractors · 2024-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Damian Miller,

COMPLAINANT,

Jonathan Dana Silverthorn

DBA: Silverco

License No. ROC 328873,

RESPONDENT.

No. 2023A-07070-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2024

APPEARANCES: Complainant Damian Miller appeared on his own behalf. Jonathan Silverthorn appeared on behalf of Respondent Silverco. Arizona Registrar of Contractors Investigator Miles Crosby appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice of the Agency record was taken; Complainant’s Exhibits 1 (Observation Report) and Photographs 117043, 093535, and 075508 were admitted. Respondent did not offer any exhibits.

FINDINGS OF FACT

Jonathan Dana Silverthorn, doing business as Silverco (“Respondent”), is the holder of License Number 328873 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about August 24, 2022, Damian Miller (“Complainant”) contracted with Respondent for the remodel and the construction of an addition to his home. The contract price was $501,779.00.

On or about June 22, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Jason Simpson. After an August 16, 2023 Jobsite Inspection, which Respondent did not attend, Investigator Simpson issued a Written Directive to Respondent dated August 30, 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 September 15, 2023.

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

Complaint Item 1: “A previous complaint was filed (Complaint ID - 2023-05099). In that complaint, there were concerns about the concrete slab being too out of square to build on, and an abundance of cracking and heaving on the concrete. Since that case, 2 tests have been completed on the concrete slab.

1) A core test for concrete strength paid for by the concrete subcontractor: resulted in 6600 PSI strength

2) A compaction test on the soils under the concrete pad paid for by the homeowner: the tests have resulted in compaction percentages under 90%. My understanding is that the compaction percentage needs to be at 95% minimum for residential standards. Since our compaction percentage is under 90%,

I believe this may be causing the substantial cracks and heaving. ”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner. Verified that the cracking in concrete mutable areas exceed tolerance min standards. Also, work did show completed per the approved plans and specs. The Respondent should fix by appropriate means.

All errors in original.

Following the issuance of the Written Directive, it was brought to Investigator Simpson’s attention that it contained a typographical error. Consequently, on August 31, 2023, Investigator Simpson issued a corrected Written Directive that extended the compliance deadline and provided as follows:

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

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Verified; the cracking in concrete in mutable areas in the garage exceed tolerance of the 1/16in min standards. The residential slab work did not show completed per plans and specs and was out of square.

The Respondent should fix by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Since that case, 2 tests have been completed on the concrete slab.

1) A core test for concrete strength paid for by the concrete subcontractor: resulted in 6600 PSI strength. ”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Complaint Item 3: “

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

All errors in original.

On September 25, 2023, Investigator Simpson conducted another Jobsite Inspection which Respondent did not attend. Investigator Simpson issued an Addendum Written Directive to Respondent dated September 25, 2023, that provided as follows:

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

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

The Respondent should fix by appropriate means.

Complaint Item 4: “The contract signed by Jonathan Silverthorne was to complete an entire addition, remodel, and renovation project within twelve months of plans being approval by Pinal County. Start date of project will be determined once Pinal County approves plans. It will require 12 months to complete project. Once plans approved, contractor will start as soon as possible. Delays by acts of mother-nature are not included in this timeline or any Silverco & subcontractor related Covid delays.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 5: “Except as provided below, the contractor shall provide all labor and materials, and perform all work necessary for the completion of:

1) the residence addition of approximately 2454 sq ft. as per the approved plans

2) the garage/shop addition of approximately 3174 sq ft, and as per the approved plans

3) the remodel of the existing residence of approximately 1760 sq ft. as per the approved plans

The above described work will be completed at 42087 N Roadrunner Rd. San Tan Valley, AZ, 85140 as per the site plan”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 6: “-Concrete

-Framing

-Stucco

-Paint

-Electrical (new and replace old)

-Plumbing (new and replace old)-

-Install new water heater and recirculation pump and softwater system

-Install Kitchen R/O system

-HVAC

-Garage Doors

-Windows

-Insulation

-Baseboards

-Demo of old kitchen cabinets

-Demo of select interior walls

-Frame in new pantry

Patch drywall from damage due to new electrical and plumbing install

-Create new door and window openings required for kitchen remodel

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 7: “Our residential building plans were approved by Pinal County Building Safety Department on Sept 15th, 2022. Twelve months have come to pass since the plans were approved. At this point in time, we are still waiting on a concrete slab/foundation that is built to plan specifications. Furthermore, we have not incurred dealys due to mother nature, covid other issues not due to contractor workmanship.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Since that case, 2 tests have been completed on the concrete slab.

1) A core test for concrete strength paid for by the concrete subcontractor: resulted in 6600 PSI strength. ”

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Complaint Item 3: “

Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

All errors in original.

After the October 11, 2023 deadline for compliance with the Written Directives expired, Investigator Simpson ascertained that Respondent had not performed any corrective work. Consequently, a compliance inspection was not performed.

Investigator Simpson forwarded the matter to the Registrar’s Legal Department. 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), A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Miles Crosby testified at hearing in lieu of Investigator Simpson due to Investigator Simpson’s unavailability. Investigator Crosby testified consistently with the above delineated Findings of Fact. Investigator Crosby further testified regarding Investigator Simpson’s case notes and emails exchanged between the parties and Investigator Simpson.

At hearing, Mr. Silverthorn asserted that he did not receive notice of the Jobsite Inspections. However, Investigator Simpson’s notes indicate that he mailed and emailed copies of the Jobsite Inspection Notices and Written Directives to Respondent’s mailing and email addresses of record with the Registrar. Those addresses were confirmed at hearing. Further, Mr. Silverthorn had email correspondence with Investigator Simpson on August 31, 2023, September 1, 2023, September 4, 2023, and September 10, 2023, all within the period of the Written Directives.

Investigator Crosby testified that Respondent’s contract was missing the following required elements: i) the estimated date of completion of all work to be performed under the contract; ii) the dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract; and iii) that the property owner has the right to file a written complaint with the Registrar and information regarding how to do so.

Investigator Crosby testified that the general contractor for a project is responsible for subcontractors hired by the general contractor. Investigator Crosby further testified that county inspections are required for health and safety purposes and do not necessarily ensure that plans and specifications are followed. Investigator Crosby explained that plans and specifications for a project “take precedent.”

Investigator Crosby opined, based upon the photographs taken by Investigator Simpson at the Jobsite Inspections, that the concrete installation does not meet the Registrar’s standards. Investigator Crosby specifically referenced photograph numbers 12 and 3 during his testimony. Investigator Crosby testified that the “concrete should not look like this” had proper control joints been installed and had there been proper soil compaction. Investigator Crosby also testified that there was no reinforcement installed. Investigator Crosby testified that minimum standards for concrete include reinforcement of some sort, and that meeting a municipality’s requirements does not necessarily equate to constructing a project to plans and specifications or that minimum standards have been met. Investigator Crosby further testified that Respondent accepted the surface upon which it installed the concrete and that surface required compaction.

The Registrar’s substantive policy statement 2017.01 sets out the following pertinent information:

Acceptance of the Surface

As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.

Complainant testified regarding the Observation Report obtained from Engineering Report Services dated July 11, 2023. The fourteen page Report states the following in pertinent part:

Engineering Support Services (ESS) has reviewed the construction drawings and observed the existing conditions at the property. Based on our evaluation of the above, ESS recommends the slab not be used for construction. ESS noted the slab to not be the correct thickness nor is the slab square to the existing structure. . . . The contractor that installed the concrete clearly did not follow the plans. In addition, the slab does not appear to be cured properly which is the major cause of the severe cracking. The slab appears to have been allowed to dry quickly instead of keeping it moist for 10-14 days after the pour to allow the concrete to slowly cure. Quick drying causes the top layers of the concrete to shrink resulting in cracks forming which then propagate through the slab. The lack of slab reinforcement is also concerning and believed to be a design flaw. ESS recommends the slab be fully removed. . . . The slab at the garage does not meet the project specifications and was also not cured properly which has resulted in cracks throughout the slab. Removal and replacement of the slab is up to the homeowner and their tolerance of cracks located throughout the garage. ESS recommends the slab be replaced.

Complainant also referenced photographs during his testimony to illustrate the deficiencies in the concrete, specifically photographs 093535 and 075508, that depict that the thickness of the concrete was deficient.

Complainant testified that Respondent has had ample opportunity to address the deficiencies and complete the project, and has failed to do so, asserting that it is not Respondent’s responsibility. Complainant ultimately had the concrete removed on October 17, 2023, after the expiration of the Written Directives.

Mr. Silverthorn testified that there were “37 weeks of delays” and that Complainant “just wanted the concrete replaced.” Mr. Silverthorn asserted that Respondent wants to work with Complainant, however, Complainant does not want to work with Respondent. Mr. Silverthorn testified that if this matter is decided in Complainant’s favor, he will file complaints against his subcontractor. Mr. Silverthorn asserted that Respondent should not be held responsible because Complainant terminated the contract with Respondent. Mr. Silverthorn testified that Respondent was “never given an opportunity” to rectify the situation. The contract was not terminated until after the expiration of the Written Directives, during which time Respondent could have performed the required corrective work, however, chose not to do so.

Administrative notice is taken of Respondent’s prior License record on January 11, 2024. Such prior License record reflects that Respondent’s License Number 328873 was first issued on May 13, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears 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 credible, substantial, and probative 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 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’s contract lacked all of the required elements, specifically, the estimated completion date for the project, project payment specifications, and information regarding a property owner’s right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the required corrective work following the Written Directives being issued, and that valid justification for such failure did not exist. 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 Number 328873 for a period of seven (7) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 16, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Miles Crosby

[email redacted]

Jason Simpson

[email redacted]

Jonathan Dana Silverthorn

DBA: Silverco

25714 S. 207th St.

Queen Creek, AZ 85142

[email redacted]

Damian Miller

42087 N. Roadrunner Rd.

San Tan Valley, AZ 85140

[email redacted]

By: OAH Staff