ALJDEC - Licensing
2023A-09587-CHC-ROC · Registrar of Contractors · 2024-01-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jimmie Johnson
COMPLAINANT,
v.
Black Diamond Builders LLC
License No. ROC 297510,
RESPONDENT.
No. 2023A-09587-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 19 2023.
APPEARANCES: Gary Vertuno represented himself. Jimmie Johnson appeared on behalf of himself. Bryan Young represented Respondent Black Diamond Builders, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: No exhibits offered or admitted.
_____________________________________________________________________
FINDINGS OF FACT
1. On or about December 9, 2021, Respondent Black Diamond Builders, LLC (Respondent) agreed to build a home for Complainant Jimmie Johnson located at 1008 E. Bluebell Lane, Tempe, AZ 85288 (the home).
2. Gary Vertuno is an owner of the home.
3. Bryan Young is the qualifying party for Respondent.
4. Respondent is not licensed to perform electrical work.
5. Respondent did not provide Complainant with a contract that included a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).
6. On or about January 14, 2022, Respondent started work.
7. Respondent performed electrical work on the project.
8. On July 14, 2023, Complainant requested a building confidence program informal inspection.
9. On August 2, 2023, the Arizona Registrar of Contractors (Registrar) conducted a building confidence program informal inspection.
10. On or about August 2, 2023, Respondent stopped work.
11. On or about August 18, 2023, the Registrar received a complaint from Complainant alleging poor workmanship and abandonment on the part of Respondent.
12. On September 7, 2023, Registrar Investigator Miles Crosby conducted a job-site inspection.
13. On September 19, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct Complaint Items 1 through 8, 10, 13, and 21 by appropriate means, no later than October 5, 2023. See the Registrar’s Administrative Record, pgs. 165-175.
14. Respondent did not correct the items listed in the Directive by the due date.
15. The Respondent’s license was suspended from April 2023 to August 1, 2023. See Investigator Crosby’s testimony at 15:00 – 18:00 minutes.
16. On October 12, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a) and (b); Ariz. Rev. Stat. section 32-1154(A)(1), Ariz. Rev. Stat. sections 32- 1154(A)(2)(a) and (b), (12), (16), (17), (22); Ariz. Rev. Stat. section 32-1158.
17. Respondent filed a timely answer to the Citation. In the answer, Mr. Young stated that he was fired from the job on July 12, 2023.
18. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
19. A hearing was held on December 19, 2024.
20. At hearing, Gary Vertuno testified on behalf of himself. Mr. Young testified on behalf of Respondent. Investigator Crosby testified consistently with his job-site inspection notes.
21. Mr. Vertuno explained that Respondent performed poor work during the construction of the home. Mr. Vertuno stated that Respondent was not fired. Furthermore, Mr. Vertuno stated that the contract with Respondent provides that a 10 day written notice is provided to terminate the contract, which was never issued.
Mr. Vertuno stated that the homeowner’s association requires a maximum of a nine month build time that was exceeded by Respondent.
14. Mr. Young stated that he should have had change orders.
Mr. Young disputed that he performed poor work. Mr. Young stated that he was fired from the job.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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)
The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of A.R.S. § 32-1154(A)(3).
4. The preponderance of the evidence shows that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).
5. The preponderance of the evidence shows that Respondent did not perform work in accordance with applicable building codes and professional industry standards in violation of A.A.C. R4-9-108(b), and thereby of A.R.S. § 32-1154(A)(3).
6. The preponderance of the evidence shows that Respondent violated Ariz.
Rev. Stat. sections 32-1154(A)(2)(a) and (b).
7. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.
8. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154 (A)(14).
9. The preponderance of the evidence shows that Respondent contracted
beyond the scope of its license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(16).
10. The preponderance of the evidence shows that Respondent failed to comply with 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 License No. 297510 Black Diamond Builders, LLC, for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 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, January 8, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Jimmie Johnson
[email redacted]
Miles Crosby
[email redacted]
Black Diamond Builders LLC
[email redacted]
By: OAH Staff