ALJDEC - Licensing

2023A-09553-CHC-ROC · Registrar of Contractors · 2023-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dale DuBois ,

COMPLAINANT

v.

Creative Outdoor LLC

License No. ROC 183054,

RESPONDENT

No. 2023A-09553-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 11, 2023

APPEARANCES: Dale DuBois appeared on his own behalf, along with his wife Theresa DuBois. Travis Hill, Esq., as counsel, 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 its contents.

_____________________________________________________________________

FINDINGS OF FACT

Creative Outdoor LLC (Respondent) is the holder of License No. 183054 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 28, 2021, Dale DuBois (Complainant) entered into a contract with Respondent for, among other things, patio and general landscaping improvements.

On or about August 17, 2023, the Registrar received a Complaint against Respondent from Complainant alleging failure to obtain a permit in violation of the building codes.

The Registrar assigned the complaint to Investigator Jim Dimond. After receiving the complaint and recognizing the issue to be one of permitting, Investigator Dimond called Yavapai County and ascertained that a permit was required for the work completed by Respondent. Specifically, a permit was required to install and cover a gas pipe line for the purposes of converting a wood-burning fire pit to a gas fire pit.

Investigator Dimond then issued a complaint allegation letter (Letter) on August 21, 2023 to Respondent. This Letter placed Respondent on notice that the Registrar received a formal complaint filed against Respondent’s license.

Investigator Dimond did not conduct a jobsite inspection because there were no allegations of workmanship issues in the Complaint. It was an “administrative issue.”

No written directives were issued.

Investigator Dimond then forwarded the Complaint to the Registrar’s legal department for issuance of a citation with instructions to charge possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B); and Ariz. Rev. Stat. § 32-1154(A)(2)(B).

On September 15, 2023, 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)(2)(B).

Respondent, through counsel, filed its Answer to Citation and Motion to Dismiss (Motion). Assistant General Counsel Robert Stirling denied the Motion.

Investigator Dimond conceded he had no evidence to support a violation of Ariz. Rev. Stat. § 32-1154(A)(3) mainly because he never conducted a jobsite inspection.

Investigator Dimond testified that while he did not conduct a jobsite inspection, he did review pictures and photographs from the prior Investigator’s jobsite inspection. He also reviewed the contract between the parties which stated that the homeowner bore the responsibility for obtaining all appropriate permits. Investigator Dimond, however, further testified that the contractor had an obligation to comply with all code restrictions.

Lastly, Investigator Dimond testified that Respondent would not have gone out to inspect the permitting issue.

Complainant testified that the fire pit was not originally contracted for, but rather was an add-on. He stated that he had told Brody “David” DeBorde that he was contemplating buying a gas fire pit and Mr. DeBorde stated he could build one and it would be cheaper.

Complainant testified that he showed pictures of a gas fire pit that he had at his previous home in California and wanted one exactly like it; specifically, he wanted to be able to put a table top around it to be able to use it as a dinner table with the gas fire in the center.

Ultimately, Respondent dug trenches to lay the gas pipe and subsequently covered it with pavers, although the pipe was not connected to anything. Complainant further testified that he later learned from another contractor that his gas line coming out of the house was for a barbeque and wouldn’t support a fire pit.

Lastly, while he testified that Mr. DeBorde told him he did not need a permit because the gas line was going to the pit and not the house, Complainant stated he would have paid for a permit if one was needed. Complainant stated that he expected that Respondent would be the one to obtain it because Respondent was the professional and that procedure was what had been followed by all other contractors Complainant had used.

Mr. DeBorde, qualifying party, testified on behalf of Respondent. Mr. DeBorde testified that Respondent was originally contracted to build the back patio and he then agreed to build a permanent fire pit. Mr. DeBorde testified that the fire pit was designed to be a wood-burning fire pit and that they never talked about making it a gas fire pit. Respondent only placed the gas pipe line in place in the event that Complainant wanted to convert the fire pit to gas in the future.

Mr. DeBorde testified that Respondent dug the trenches, laid the gas pipe, and left those trenches open and exposed for the purpose of Complainant getting an inspection done for a permit. He further testified that Respondent was unable to dig the trenches as deep as 18 inches (which was required by code) to bury the pipe due to several tree roots preventing the trenches from being dug any further. Notwithstanding he stated that, under certain circumstances, a permit might still be issued even though the required depth could not be achieved.

Mr. DeBorde stated that after the two weeks when the trenches were left open, he came back to the property to find that the pipe had been covered with pavers, admittedly done by Respondent’s workers. When pressed, he admitted that he assumed it was never Complainant’s intention to obtain a permit. This, however, did not stop him from proceeding forward on the project.

Mr. DeBorde testified that the contract the parties entered into delegated the responsibility of obtaining all permits to the homeowner.

Administrative notice is taken of Respondent’s prior License record on December 11, 2023. Such prior License record reflects that Respondent’s License No. 183054 was first issued on August 3, 2003, and is currently active. Such prior License record also reflects that there was this open complaint and one previous complaint resulting in 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.”

Respondent raised the defense that under Ariz. Rev. Stat. § 32-1155(D), the citation should not have been issued.

Ariz. Rev. Stat. § 32-1155(D) requires an affirmative duty upon the contractor to request an opportunity to inspect the work. There was no evidence presented that Respondent requested an opportunity to inspect the work and was denied that opportunity.

Respondent further raised the defense of res judicata. The evidence showed that the issue of the fire pit was not raised in the first action. Under the applicable facts in this case, the principle of res judicata does not apply here.

The evidence established that Respondent did not complete the project in accordance with all appropriate building codes of Yavapai County and that this omission was a material disregard that was prejudicial to Complainant. Regardless of who was required to obtain the permit, it was Respondent’s responsibility and obligation as a contractor to ensure all permits were in place prior to beginning or continuing any work that required one. The contract between the parties did not have the power to shift this responsibility from the contractor under Ariz. Rev. Stat. § 32-1154(A)(2)(b). Therefore, Complainant has established that Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).

The evidence failed to establish that Respondent did not perform all work in a professional and workmanlike manner, and therefore no violation, such as contemplated by of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) is found.

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. 183054 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 28, 2023.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff