ALJDEC - Licensing

2023A-07591-CHC-ROC · Registrar of Contractors · 2024-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Good,

COMPLAINANT

Full Frame Construction LLC

License No. ROC 324834,

RESPONDENT

No. 2023A-07591-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 22, 2024 and February 9, 2024

APPEARANCES: Complainant John Good appeared on his own behalf. Andrew Wenker, Esq. appeared on behalf of Respondent Full Frame Construction, LLC. Investigator Lisa Melton appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 – 17 were admitted into evidence. Respondent’s Exhibits 1 – 35 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Full Frame Construction, LLC (Respondent) is the holder of License No. 324834 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 5, 2022, John Good (Complainant) agreed to have Respondent to continue to build an addition onto his house. The contract was signed on April 5, 2023, and the cost was to be $30,000.00. Complainant paid $8,000.00 as a down payment, a $10,000.00 draw payment on or about April 25, 2022, and a final payment of $11,220.25 on May 15, 2023.

On April 14, 2022, after emails were exchanged, the parties agreed that Respondent would install power to a new 200 AMP panel and run 12 circuits and bring the house to current electrical codes, for a cost of $4,4,34.78. This work was done by Respondent and paid for by Complainant.

On or about April 25, 2022, the parties agreed that Respondent would install a 1.5 mini-split air conditioning unit for a cost of $1,800.00. This too was completed by Respondent and paid for by Complainant.

On or about June 15, 2022, the parties agreed that Respondent would also complete additional plumbing work. Respondent invoiced Complainant for $6,335.40, and Complainant paid the same.

On or about July 7, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Lisa Melton. Investigator Melton originally scheduled the jobsite inspection for August 18, 2023, however, the Complainant requested that the inspection be performed earlier. Thus, Investigator Melton notified the parties via e-mail on July 20, 2023, that the jobsite inspection would be on July 21, 2023.

Later on July 20, 2023, Respondent’s owner, Ron Buchholtz informed Investigator Melton that he was out of town and could not make the inspection until the following week.

The jobsite inspection took place on July 21, 2023 and Investigator Melton then issued a written directive later that day, 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 August 7, 2023.

If additional time is required due to delays with permitting/inspection, Respondent should request additional time and provide sufficient information to substantiate need for extension prior to the expiration of this Written Directive.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: Mini-split unit stopped working. Ronnie was notified on 6/19/23. Separate living quarters is unsafe and uninhabitable and has been above 90 degrees during an excessive heat warning. I hired a separate HVAC contractor to diagnose the issue. He said that he compressor passed the test, but he found a leak and now the unit needs new coolant. This may have been installed incorrectly. Ronnie says this is a manufacturer issue, and has been unresponsive. Inspection was not performed by the city.;

Investigator’s Observation: At the time of the inspection unit was not working. Oily substance was evident on and in the area of refrigerant lines. Unit was installed on new addition which has been permitted and inspected by the building authority. Complainant had unit inspected by contractor (mechanical) other than Respondent after it stopped working. Invoice from that contractor is saved to file and has been provided to the Respondent. Invoice indicates nothing that establishes modification of the Respondent’s work. Respondent should correct this non-working unit (installed as part of project completed in March of 2023) by appropriate methods.

Governing Rule:

ARS §32-1154 (A) (3), 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.

Compliance Item 2: We paid to have new circuits installed, but the new circuits keep crashing in the main house. Lights and outlets no longer work in the master bathroom and kitchen electricity now trips a breaker when appliances are being used. A permit was not pulled and no inspection was ever performed. ;

Investigator’s Observation: Light in master bathroom (shower enclosure) does not come on when activated at switch. Outlet in this same room appears to be energized (green light) but does not provide power to appliance plugged into the outlet. Appliance was tested and functioned in other outlets. When Complainant has the dryer in the laundry room running and turns on the microwave and air fryer in the kitchen the breaker trips. Complainant managed the permitting for the addition (this electrical is in the existing portion of the residence) and stated that they do not believe a permit was obtained by the Respondent for the new circuits installed in the existing residence. Statute requires that the Respondent comply with building code. Permit and inspection is part of the code. Respondent should correct these electrical conditions by appropriate methods and obtain permitting and inspection as required for the work they performed in existing residence. Respondent should provide copy of closed (passed/completed) permit for this scope of work to the ROC Investigator.

Governing Rule:

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item 3: Ronnie's lack of quality workmanship and follow-through is a breach of his duty of care for the occupants of our home and the occupants of the separate living quarters. The mistreatment of the materials that we purchased and Ronnie's inaction to remedy guaranteed work has caused us harm. We no longer have access to quality of life services needed in Arizona; no AC in the separate living quarters and faulty electricity in the main home.

Investigator’s Observation: Not a workmanship concern that can be inspected and/or evaluated. Electrical and AC are addressed in other Complaint Items.

Governing Rule: Not Applicable.

(All errors contained in the original).

While no compliance jobsite inspection was performed, Investigator Melton sent the parties the following note:

Compliance Jobsite General Notes: NO PHYSICAL INSPECTION WAS PERFORMED.

Parties agree that Item #1 has been corrected. Respondent has declined to perform any correction relative to Item #2.

. . ..

(All errors contained in the original).

On September 14, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b), and A.R.S. § 32-1154(A)(22).

On or about September 29, 2023, Respondent timely submitted Answer to the Registrar.

On or about November 1, 2023, a Notice of Hearing was issued setting a hearing on December 12, 2023 at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on January 22, 2024 and February 9, 2024.

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

Investigator Melton testified that because one of the complaint items was the air conditioning, she decided to expedite the jobsite inspection.

By August 21, 2023, Investigator Melton testified that she was not presented with any evidence that the permit had passed inspection for the electrical work.

Finally, Investigator Melton testified that she included the abonnement charge for not completing the permit and the electrical work was incomplete, and that she had substantial concerns over the electrical work.

Complainant testified as to the agreement for the electrical work. He testified that the parties discussed the work on April 12, 2022, the work was completed on April 13, 2022, invoiced on April 14, 2022, and subsequently paid for. He testified that this was a separate contract which was entered into in addition to the initial contract, and was paid for separately.

Complainant testified further that he noticed issues with the electrical work and mentioned it to Respondent, but his concerns were never addressed.

Complainant testified that during the corrective work period, Mr. Buchholtz e-mailed Investigator Melton explaining that Complainant was:

...currently running the whole kitchen, microwave, and air handler all on the same circuit. They would really need to run a new circuit for the microwave and the air handler. This is our side of the scope of work that we did for Mr. Good and is the original wiring in the home. All we did in our scope of work. was to remove an old buss fuse panel and put them into the new 200 amp panel. We did not rewire or do any other electrical work in the main home. The panel as finaled and signed of by the City last year.

(All errors contained in original.)

However, Complainant testified that this was incorrect and that Respondent charged $4,200.00 for labor, wire boxes, ground rods and bonding wire and to run 12 new circuits and clean up the runs to the dryer, HVAC and stove, and run new lines to the new panel as it would eliminate the old box in the kitchen and bring everything up to “snuff”.

Complainant testified that this full work was never completed as there were no ground rods installed and nothing was done to add the new circuits.

Further, Complainant testified that there was never a separate electrical inspection and that the building permit was re-opened on January 10, 2024. Further, Scott Kirk of the City of Phoenix found that the panel was not grounded.

Ron Buchholtz testified on behalf of Respondent. He testified that he was contacted by Complainant to finish the addition as Complainant had run into issues with his previous contractor.

As to the electrical work, Mr. Buchhholtz testified that someone else had installed the 200 AMP panel, and that he did not know that they had not completed the same. Mr. Buchholtz testified that he ran the circuits from the old panel into the new panel and put them on separate breakers. However, Mr. Buchholtz testified that he did not believe that his workers grounded the panels, and that he would be happy to correct that work, if necessary. Further, there was no issue of the circuits which he was aware of and thus no reason to cut through the drywall. All of this was what the change order was for on April 13, 2022.

Mr. Buchholtz testified that this work would have been covered by the original permit so he would not have needed a new permit. Further, Mr. Buchholtz testified that the Certificate of Occupancy was issued in December 2022.

In addition, Mr. Buchholtz testified that Complainant had a property inspection on December 23, 2022 completed by Valley Building Inspections. Mr. Buchholtz testified that the inspection found that the work was acceptable.

Also, Mr. Buchholtz testified that he was surprised when the Good’s filed the Complainant because they never had brought up any issues and the work had passed inspection.

As to him not being present at the jobsite inspection, Mr. Buchholtz testified that he asked to have the same rescheduled for a week as he was out of town. When this was not done, he missed the inspection. Mr. Buchholtz testified further that he requested to re-walk the property but nothing came of it.

Mr. Buchholtz also testified that he did not believe that Complainant had a right to file this action as Complainant had waived his right to do so per the parties’ agreement. As the entire project was winding up, Respondent requested that the remaining balance of $13,800.00 be paid. After further back and forth e-mails were exchanged, the parties agreed that Complainant would pay $11,220.25 and grant Respondent an Unconditional Waiver and Release of Final Payment.

Administrative notice was taken of Respondent’s prior License record on February 23, 2024. Such prior License record reflected that Respondent’s License No. 324834 was first issued on June 19, 2019, and reflected that there was one open complaint, namely the present complaint, and three resolved/settled cases.

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).

At the outset, the tribunal addresses the Respondent’s claim that he did not have an opportunity to inspect the property once the Complaint was filed. A.R.S. § 32-1155(D)(1) states:

The registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

4. In this case, a preponderance of the evidence did not demonstrate that Respondent was barred or otherwise not allowed to inspect the work. Mr. Buchholtz stated to Ms. Melton that he was out of town when the inspection was scheduled and requested an additional week. There was no other proof however from Respondent that it made subsequent requests and was denied. Further, Mr. Buchholtz arguably could have joined the jobsite inspection via video conference but that does not appear to have been attempted. Therefore, the tribunal declines to dismiss the Complaint on this basis.

Next, Respondent argued that Complainant was barred from bringing the Complainant due to the waiver singed on May 15, 2023. The tribunal finds that the electrical work in question was a separate agreement and was completed, invoiced and paid for before any other work had been performed. The waiver was signed in regards to the remaining balance on the addition to the house. Therefore, the tribunal finds that Complainant had not waived its right to file a complaint based on that work.

The preponderance of the evidence demonstrated that Respondent undertook the electrical work and completed the project as he thought it to be which was different from Complainant’s interpretation. While maybe completed sloppily and not in a properly workmanlike manner, this alone does not rise to the level of abandonment, and as such the tribunal finds no violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The electrical panel did not have the proper grounding, and there were issues with the dryer operating and then the microwave turning on. No permit was obtained for the work completed in the inside of the home. The work that was done also did not meet the standards of a similarly licensed contractor. Therefore, Complainant established that Respondent did not complete the electrical work in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. The evidence demonstrated that Mr. Buchholtz refused to comply with remedying the electrical issues by asserting that the work was not within the scope of the agreement and that Complainant waived its right to file a complaint against him. As mentioned above, the tribunal finds that the electrical work was a separate contract and it was clear that the circuits to the dryer, etc. were to be fixed and they were not. If there was a misunderstanding, then Mr. Buchholtz should have discussed the same with Complainant. Also, Mr. Buchholtz acknowledged that the grounding (which was clearly part of the agreement) was never fixed. 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. 324834 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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, February 23, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

John Good

[email redacted]

Andrew J. Wenker, Esq.

[email redacted]

By: OAH Staff