ALJDEC - Licensing

2023A-10633-CHC-ROC · Registrar of Contractors · 2024-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arlene Dayve Cleet,

COMPLAINANT

v.

J O Tech LLC Jason Earl Otte

License No. ROC 346522,

RESPONDENT

No. 2023A-10633-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 5, 2024

APPEARANCES: Complainant Arlene Dayve Cleet appeared via telephone on her own behalf. Respondent failed to appear. Investigator James Carter appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

J O Tech LLC Jason Earl Otte (Respondent) is the holder of License No. 346522 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 16, 2022, Arlene Dayve Cleet (Complainant) agreed to have Respondent remodel her bathroom and install a new dining room floor, at her residence. The contracted amount was $1,586.00, and Complainant paid the same.

On or about September 8, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator James Carter. The jobsite inspection was performed on October 3, 2023.

Investigator Carter then issued a written directive on or about October 5, 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 October 26, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Medicine Cabinet Glass Scratched Front Bathroom

Investigator’s Observation: Verified. Investigator observed several scratches in the glass that were the result of the Medicine cabinet being removed by the respondent. The Respondent will need to correct this by the appropriate means.

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 - Dining Room Floor Damaged

Investigator’s Observation: Verified. Investigator observed at least two areas where the flooring material was damaged as a result of respondent moving material and storing it on the floor. The Respondent will need to correct this by the appropriate means.

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 - Chip in Flooring in guest bathroom by Shower

Investigator’s Observation: Verified. Investigator observed and large chip in the flooring in front of the shower in the guest bathroom. The Respondent will need to correct this by the appropriate means.

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: 6 - Shower dower leaking in guest bathroom

Investigator’s Observation: Verified. Investigator observed a gap between the shower pan curb and the bottom of the shower door allowing water to run out. The Respondent will need to correct this by the appropriate means.

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.

(All errors contained in the original)

On November 8, 2023, Investigator Carter conducted a Compliance Jobsite Inspection. Investigator Carter noted the following:

Compliance Jobsite General Notes: CJSI photos and audio taken with my Google Pixel

Phone camera. CJSI photos and audio have been placed into the ROC complaint file. Complainant was present for the CJSI Respondent was not.

Compliance Findings:

Compliance Item: 1 - Medicine Cabinet Glass Scratched Front Bathroom

Investigator’s Observation: This item was addressed and corrected

Governing Rule:

Compliance Item: 2 - Dining Room Floor Damaged

Investigator’s Observation: Respondent attempted repair however the floor looks worse after the repair attempt. Several large gaps noted between planks that were removed and replaced. The planks are loose and causing lipage. Planks near the closet and front door that were not damaged before are damaged now.

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 - Chip in Flooring in guest bathroom by Shower

Investigator’s Observation: Respondent attempted repairs here however there is loose planks and lipage mainly between the toilet and the shower. Baseboard that was removed behind the vanity is damaged and or not repainted.

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: 6 - Shower dower leaking in guest bathroom

Investigator’s Observation: The gap between the shower door and the pan was not addressed. Instead a rubber strip was installed on the pan cause it to catch water and water is running onto the floor.

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.

Note: After conducting the CJSI I find sufficient evidence to issue a citation in thi matter and forwarding this to the legal department.

(All errors contained in the original).

On November 19, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

On or about November 23, 2023, Respondent e-mailed an Answer to the Registrar.

On or about December 6, 2023, a Notice of Hearing was issued setting a hearing on January 22, 2024, at the Office of Administrative Hearings, an independent state agency.

At the hearing on January 22, 2024, the parties agreed to continue the matter to allow Respondent additional time to make the repairs.

On January 23, 2024, the tribunal issued a Minute Entry continuing the matter to April 5, 2024 and emailed the same to the parties email address of record.

At the hearing on April 5, 2024, although the start of the hearing was delayed 20 minutes, Respondent failed to appear. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Investigator Carter testified as to the Registrar’s involvement and the above timeline.

Investigator Carter testified that Respondent failed to appear at the numerous Jobsite Inspections despite being notified of the same. However, Mr. Otte would be in regular e-mail contact with Investigator Carter.

Further, Investigator Carter testified that he conducted a prehearing jobsite inspection on April 1, 2024 and found that only Compliance Item 2 remained incomplete.

Investigator Carter testified that the dining room floor still had excessive lippage and chips, and Complainant did not accept the corrective work.

Complainant testified on her own behalf. She testified that while Respondent came out several times to make the repairs, the dining room floor still had a “bump”, and was never correctly repaired.

Administrative notice was taken of Respondent’s prior License record on April 19, 2024. Such prior License record reflected that Respondent’s License No. 346522 was first issued on July 17, 2023, and reflected that there was one open case, namely present complaint.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano 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 established that Respondent’s work was not in conformity with the Registrar’s standards. There was a scratch on the medicine cabinet, multiple damages to the dining room floor, chips in the flooring in the guest bathroom, and the guest bathroom shower door was leaking. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established Respondent failed to fully complete the corrective work following the Directive being issued. Per Complainant’s testimony the dining room floor was still incorrect as it had a bump. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 346522 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 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, April 19, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Arlene Dayve Cleet

[email redacted]

J O Tech LLC Jason Earl Otte

[email redacted]

By: OAH Staff