ALJDEC - Licensing

2023A-07749-CHC-ROC · Registrar of Contractors · 2024-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roseanna Angela Granado ,

COMPLAINANT

v.

Mountain Town Homes LLC

License No. ROC 318456,

RESPONDENT

No. 2023A-07749-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING:

APPEARANCES: Complainant Roseanna Angela Granado represented herself. Luke Shinkle represented Respondent Mountain Town Homes LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE:

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FINDINGS OF FACT

1. Respondent holds License No. 318456 issued by the Arizona Registrar of Contractors (Registrar or ROC).

2. Luke Shinkle is Respondent’s qualifying party.

3. On or about July 10, 2023, Complainant filed a complaint with the Registrar alleging that Respondent caused damage to her home while building townhomes next door to her house.

4. On or about August 21, 2023, Investigator Chris Allison conducted a job-site inspection.

5. On September 15, 2023, the Registrar issued a Directive against Respondent’s license. The September 15, 2023 Directive provided, in relevant part, as follows:

Dear Respondent:

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 October 1, 2023.

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RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - They were building townhouses next door to my house and damaged my property. Siding - cement and white splotches.

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - They were building townhouses next door to my house and damaged my property. Window - chipped and cement splotches

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - - They were building townhouses next door to my house and damaged my property. Screens on windows - cement splotches

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - - They were building townhouses next door to my house and damaged my property. Drainage issues - No longer drains in the corner.

Investigator’s Observation: Due to the development of the adjacent lot excessive and unacceptable amounts of water is discharging onto the Complainant's property. There is now a moldy/musty smell in the bedroom closest to the property line. However, I am unable to determine if this has anything to do with the excessive run off. Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

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Errors in original only.

6. On December 24, 2023, Investigator Allison conducted a compliance job-site inspection. Investigator Allison found that Respondent failed to appropriately correct the items listed in the Directive. Investigator Allison’s compliance findings provided, in relevant part, as follows:

Compliance Item: 1 - They were building townhouses next door to my house and damaged my property. Siding - cement and white splotches.

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: There were areas that has been cleans. However, the paint/finish appeared to have been scrubbed off. There were areas of the siding that the finish was scratched off. This item was not corrected in an appropriate manner, and is not in compliance with the Written Directive.

Compliance Item: 2 - They were building townhouses next door to my house and damaged my property. Window - chipped and cement splotches

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: At the time of the inspection the window had not been repaired. Windows and screens had not been fully cleaned. This item was not corrected in an appropriate manner, and is not in compliance with the Written Directive.

Compliance Item: 3 - They were building townhouses next door to my house and damaged my property. Screens on windows - cement splotches

Investigator’s Observation: Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner. Compliance Findings: There was still cement on the windows. This item was not corrected in an appropriate manner, and is not in compliance with the Written Directive.

Compliance Item: 4 - They were building townhouses next door to my house and damaged my property. Drainage issues - No longer drains in the corner.

Investigator’s Observation: Due to the development of the adjacent lot excessive and unacceptable amounts of water is discharging onto the Complainant's property. There is now a moldy/musty smell in the bedroom closest to the property line. However, I am unable to determine if this has anything to do with the excessive run off. Respondent shall correct in an appropriate manner.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: The Respondent has resolved the drainage by adding a swale in between the two properties that drains the street. This is an acceptable practice and is in compliance with the Written Directive. In to process of addressing the drainage the Respondent covered the Complainant’s crawlspace access with dirt. This is corollary to the compliance item. This item is not in compliance with the Written Directive

Errors in original only.

7. On November 30, 2023, the Registrar issued a Citation that contained allegations that Respondent may have violated A.A.C. Rule 4-9-108(A) and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

8. Respondent filed a timely response to the Citation.

9. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

10. At hearing, Complainant testified on behalf of herself. Mr. Shinkle and Justin Moore testified on behalf of Respondent. Investigator Allison was unavailable to testify at the hearing.

11. Complainant explained that Respondent damaged her property during its construction of townhomes next door. Complainant explained that Respondent failed to properly remedy the items listed in the Directive.

12. Mr. Shinkle Window stated that the company hired by Respondent to repair the windows rescheduled twice and it was out of the control of Respondent.

Mr. Shinkle stated that Respondent remedied the crawlspace by uncovering the area and moving access to a different location. Mr. Shinkle explained that Respondent tried multiple times to remedy the splashes of paint. Mr. Shinkle stated the process required more time than the time allowed in the Directive. However, there was no evidence provided that Respondent requested an extension to comply with the Directive.

Mr. Shinkle also contended that the items in the Directive have been completed.

13. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on February 27 2024. Respondent’s license record shows that its licensed was issued on March 24, 2018 and that there is only one open complaint against Respondent’s license. Respondent’s license has been disciplined twice by the Registrar. The license record shows that 4 complaints were resolved or settled by the contractor after the issuance of a corrective order or formal citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that the issues found

by Investigator Allison demonstrate that Respondent failed to perform work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

6. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive, without valid justification, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 318456 held by Mountain Town Homes LLC for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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 27, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mountain Town Homes LLC

[email redacted]

Roseanna Angela Granado

[email redacted]

By: OAH Staff