ALJDEC - Licensing
2023A-08289-CHC-ROC · Registrar of Contractors · 2024-04-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
David Russell Shea,
COMPLAINANT
v.
Pinnacle Builders LLC
License No. ROC 312965,
RESPONDENT
No. 2023A-08289-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 17, 2024
APPEARANCES: David Shea appeared on his own behalf. Ben Warner, manager, appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Respondent’s exhibit A was admitted.
_____________________________________________________________________
FINDINGS OF FACT
Pinnacle Builders LLC (Respondent) is the holder of License No. 312965 issued by the Arizona Registrar of Contractors (Registrar).
On or about March 30, 2021, David Russel Shea (Complainant) entered into a contract with Respondent for the building of a new residential home on a vacant lot.
On or about July 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.
The Registrar assigned the Complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive 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 October 11, 2023.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - Fire sprinkler system finish. Need fire tank and other items to be completed
Investigator’s Observation: The system was not completed at the time of inspection.
The respondent is to complete the installation in an appropriate manner.
. . . .
Compliance Item: 3 - Interior trim finish. Doors, door hardware, stair handrail, etc
Investigator’s Observation: At the time of inspection, the hardware was not installed at the front door, the patio door screen was not installed and was leaning on a wall.
The mezzanine appears to have been added separately from the house contract.
While that may be the case, unless specifically excluded, the installation would need to be code compliant.
The stair to the mezzanine will need a handrail installed to be code compliant if required by the authority having jurisdiction.
. . . .
Compliance Item: 4 - Exterior. Patio lid,
Investigator’s Observation: The lid is to be tongue and groove, due to quality of wood issues, the respondent wants to use T-111.
There is a disagreement regarding lumber costs and an escalation clause in the contract.
That disagreement is beyond ROC authority.
The respondent is to complete the patio lid in T&G unless the parties execute a change order.
. . . .
Compliance Item: 6 - front porch posts;
Investigator’s Observation: The two outer spread footings were not placed in the correct location resulting in the structural support columns not being centered on the pier.
Typically loads are to be centered on these footings unless engineered otherwise.
The respondent is to correct the condition in an appropriate manner.
. . . .
Compliance Item: 8 - Drywall and paint. There is drywall and paint repairs that need to be finished
Investigator’s Observation: There are several locations throughout the home and garage that are partially repaired.
The respondent is to correct the condition in an appropriate manner.
All errors contained in original.
Following the issuance of the written directive, Respondent completed some of the work as instructed in the written directive; however, two issues still remained outstanding.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Dimond testified consistently with his written directive. He further testified that work was performed following the issuance of the written directive, that Respondent requested an extension on the written directive compliance deadline, and that the request was granted. Investigator Dimond testified that the new compliance deadline would have been “around the compliance date of the directive,” but was unable to find the exact date. Notwithstanding, Investigator Dimond stated that he would not have requested the citation be issued had the compliance date not expired.
Investigator Dimond testified that a pre-hearing inspection was held on December 20, 2023. Respondent did not attend this inspection. Investigator Dimond noted that the patio lid and handrail items were completed. With regard to the front porch posts, Investigator Dimond testified that some concrete was added, but he was unsure about the structural integrity of the repair. Investigator Dimond testified that he had 16 years of experience in heavy industrial and heavy commercial concrete. He further testified that the addition of the concrete made the posts visually appear centered; however, the addition of the concrete did not change the actual weight distribution. Investigator Dimond testified that he was unsure whether or not it would be deficient because he was not an engineer. He stated, however, that he did have a concern with this issue. Ultimately, because he was not an engineer, Investigator Dimond testified he was unsure whether the addition of the concrete was an appropriate correction.
Lastly, Investigator Dimond testified that there was a small drywall repair in the garage where the disconnect for the heat pump was relocated that still needed to be addressed. Therefore, the two issues that remained from the written directive were the front porch posts and the small drywall area that needed to be textured and repainted. However, Investigator Dimond admitted, upon cross-examination, that the drywall patch that needed attention was an area that was identified after the initial inspection.
Complainant testified that the groundbreaking of the house was supposed to occur around June of 2021, but it did not actually start until December 2021. He further testified that he would frequently visit the home during its construction and noted the issue with the footings for the posts early in the process. Complainant testified that after the Complaint was filed, Respondent poured additional concrete. Complainant was told that Respondent was going to add rebar into the concrete, but was unsure whether that actually occurred. He further testified that, since hearing Investigator Dimond testify, he now had concerns about the structural integrity of the posts.
Complainant further testified that the A/C unit had to be raised and that was completed on September 25, 2023. This caused the new drywall repair issue that Investigator Dimond referenced. Complainant further stated that, even though it occurred after the initial inspection, Respondent’s superintendent was present and Complainant had the discussion with him about the drywall issue. Complainant testified that it was likely just “one of those things” that was forgotten about. Complainant advised that it was a small issue, but still an issue.
Ben Warner, manager, testified on behalf of Respondent. Mr. Warner testified that, with regard to the new drywall patch issue, it was likely that his superintendent did know about the issue, never relayed it to Mr. Warner, and forgot about it.
Mr. Warner testified that, with regard to the posts, the footings themselves were correct; however, his workers just likely set the posts a few inches off “which happens quite often.” He further testified that rebar was added when the concrete was added. Mr. Warner testified that, in his conversations with Complainant, he understood the concern to be surrounding the aesthetics of the posts not being centered. Mr. Warner testified he was never concerned about the posts structurally. However, he was open to obtaining a structural engineer to evaluate the issue. Post hearing, Mr. Warner retained Matthew Woodruff. He further testified that the posts had already passed City inspection.
Engineer Matthew Woodruff “reviewed this project and this is ok.”
Administrative notice is taken of Respondent’s prior License record on March 28, 2024. Such prior License record reflects that Respondent’s License No. 312965 was first issued on April 17, 2017, and is currently active. Such prior License record also reflects that there were 3 other open complaints and 5 prior resolved/settled complaints 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.”
With regard to the new drywall area as testified to by Investigator Dimond, this occurred after the original jobsite inspection and occurred as a result of moving the A/C unit. Investigator Dimond found that it did not appear that the A/C unit was contracted for with the Respondent and, therefore, required no correction. Because it was not part of the written directive as an item requiring correction, Respondent did not have notice of this issue. Therefore, no violation is found under this written directive and corresponding citation.
With regard to the posts, the evidence established that the posts passed City inspection and that, originally, the concern was that the posts were not centered for aesthetic purposes. The written directive, itself, does not state that there was a concern about the structural soundness of the posts. The first time Complainant became concerned about the structural soundness was during the hearing after hearing Investigator Dimond testify.
Respondent corrected the posts aesthetically prior to the written directive compliance deadline. Notwithstanding, the parties agreed to keep the record open to obtain a structural engineering report to address the structural soundness.
The evidence established that Respondent’s work was in conformity with the Registrar’s standards. The collective evidence of the structural engineering report, along with the fact that the posts passed city inspection, and no contradicting evidence having been provided, support the position that no violation of workmanship standards was proven.
For the foregoing reasons, Complainant failed to establish that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
Furthermore, Complainant did not establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2023-08289 against Respondent Pinnacle Builder LLC’s License No. 312965.
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, April 8, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
David Russell Shea
9060 N Trinity Trl
Prescott Valley, AZ 86315-8181
[email redacted]
Pinnacle Builders LLC
12875 E Amble Way
Prescott Valley, AZ 86315
[email redacted]
By: OAH Staff