ALJDEC - Licensing
2023A-08527-CHC-ROC · Registrar of Contractors · 2023-12-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tina Marie Sloat,
COMPLAINANT
v.
Hansel Construction LLC
License No. ROC 322224,
RESPONDENT
No. 2023A-08527-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 28, 2023
APPEARANCES: Tina Sloat appeared on her own behalf. Robert Hansel, qualifying party, appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
_____________________________________________________________________
FINDINGS OF FACT
Hansel Construction LLC (Respondent) is the holder of License No. 322224 issued by the Arizona Registrar of Contractors (Registrar). This license is a Specialty Dual CR-21 Hardscaping and Irrigation Systems license. It did not permit Respondent to install pergolas.
On or about November 7, 2022 Tina Sloat (Complainant) entered into a contract with Respondent for the construction of an attached pergola.
At the time the parties entered into the contract, Respondent did not hold an R-3 license which would have licensed it to install the subject pergola.
Complainant was made aware from the initial estimates that a permit to construct the pergola would be required.
Complainant elected to obtain the permit on her own rather than pay Respondent to obtain the permit.
Respondent began work on the pergola in December, 2022.
Complainant’s husband, Doug Sloat, stopped Respondent from continuing work on the pergola upon discovering what he considered poor work which prompted him to investigate Respondent.
During that investigation, Complainant discovered Respondent did not hold the proper license to engage in pergola installations.
Complainant did not allow Respondent to continue work on the pergola at any time thereafter.
Mr. Sloat did not apply for a permit until January 2023.
Ultimately, Complainant discovered she could not obtain a permit for the partially constructed pergola because it was attached to the home and was situated on the building set back line (“BSL”).
Upon that discovery, Mr. Sloat changed the permit application to apply for a free-standing pergola. That permit was ultimately issued in July, 2023.
There is no permit for the currently attached, half-constructed pergola.
On or about July 27, 2023, the Registrar received a Complaint against Respondent from Complainant alleging that the work performed by the contractor failed to meet the minimum design requirements specified by the aluminum lattice pergola manufacturer’s engineer of record and that it did not meet the building code requirements of Maricopa County.
The Complaint was against License No. 322224, not License No. 342535.
The Registrar assigned the complaint to Investigator Joey Chester. After a jobsite inspection that occurred on August 23, 2023, Investigator Chester issued a written directive, dated August 31, 2023, 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 September 25, 2023.
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:
Complaint Item: Work performed by the contractor fails to meet the minimum design requirements specified by the aluminum lattice pergola manufacturer's engineer of record. Also, it does not meet the building code requirements of Maricopa County.
Investigator’s Observation: The Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: ARS §32-1154 (A)(3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. 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.
All errors in original.
Following the issuance of the written directive, Investigator Chester received information that the attached pergola had been constructed on a BSL. Thus, a permit could not be obtained.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154 (A)(2)(b) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B).
Investigator Chester testified that he met both Mr. Sloat and Mr. Hansel at the subject property to conduct a jobsite inspection on August 23, 2023. He noted that no permit had been pulled and that the wrong thickness was used to construct the pergola. It was also noted that the pergola was not a finished product at the time of inspection. Investigator Chester also testified that he had no indication from either party that, at the time of the inspection, Mr. Sloat had obtained a permit for a free-standing pergola. Investigator Chester did not receive a copy of that permit until Mr. Sloat emailed it to him on August 31, 2023, approximately one week after the inspection took place. Based on the fact that the attached pergola was constructed on the BSL, Investigator Chester knew that a permit for an attached structure would not be attainable. The matter was referred to ROC’s legal department and a citation followed shortly thereafter.
Complainant testified that she contracted with Respondent to have an attached pergola built. Initially the estimate included a line item for obtaining a permit for $1,000.00. After deciding she could obtain a permit cheaper, she instructed Respondent to remove that line item and affirmed she would handle obtaining the permit. She testified she relied on Respondent’s expertise and advice regarding how big the pergola could be. On November 29, 2022 she requested that Respondent “get her on the schedule as soon as possible.”
Complainant’s husband, Doug Sloat, testified that he has a contractor’s license himself, but had never encountered pergolas in his line of work. He further testified that he did not apply for a permit until January 2023 and admittedly applied for the permit because he told Respondent that he was going to “get a permit and then file with the ROC and that’s what [he] did.” It was only in phase 4/4 of the permit application process that he was told he could not permit the pergola because it was attached and sat on the BSL. At that time, he changed his permit application to apply for an unattached pergola which was ultimately approved and issued. He sent a copy of the permit to Investigator Chester on August 31, 2023.
Robert Hansel, qualifying party for Respondent, testified that he met with Complainant and went over the scope of work. He advised Complainant that before he invested any money into purchasing the pergola, he needed two permits: one from the Architectural Review Committee of the HOA and one from Maricopa County. He also advised he needed a plot map. He testified that Complainant advised him she did not want the permit and ordered him to remove it from the estimate.
Mr. Hansel continued by stating he believed Mr. Sloat to be working as an “owner builder/general contractor” and testified that Mr. Sloat had various trades on his property and was coordinating their work. As such, he believed he was working under Mr. Sloat’s “umbrella” and Mr. Sloat was responsible for obtaining all necessary permits. Notwithstanding, Mr. Hansel offered to help Mr. Sloat with applying for the permit. Mr. Sloat did not accept his help. Mr. Hansel further admitted to having used the wrong thickness in metal, but that the project was still incomplete and could have been fixed.
Administrative notice is taken of Respondent’s prior License record on November 28, 2023. Such prior license record reflects that Respondent’s License No. 322224 was first issued on October 5, 2018, and is current through October 31, 2024. Such prior license record also reflects that there is this open complaint and no prior 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.”
Ariz. Rev. Stat. § 32-1154(A)(2)(b) provides, as grounds for suspension or revocation of a license, in relevant part:
2. Departure from or disregard of:
. . . .
(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Ariz. Rev. Stat. § 32-1154(A)(3) provides, as grounds for suspension or
revocation of a license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(B) states, in relevant part:
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.
While an agreement was made that Complainant would obtain the applicable permits in this case, it is well established that the shifting of responsibility for obtaining a permit does not alleviate a contractor from not performing work unless and until the appropriate permits have been obtained. Had that been the process here, it would have been discovered that the attached pergola, as contracted for, could not be permitted at all and would have to have been converted to a free-standing pergola.
Therefore, the evidence established that Respondent did not perform the work in accordance with the applicable building code in a manner that was prejudicial to Complainant. Complainant established that Respondent departed from or disregarded the applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B).
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. 322224 for a period of 1 day.
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, December 13, 2023.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Hansel Construction LLC
33425 S Ridgeway Rd
Black Canyon City, AZ 85324
[email redacted]
Tina Marie Sloat
40726 N Noble Hawk Ct
Anthem, AZ 85086
[email redacted]
By: OAH Staff