ALJDEC - Licensing
2023A-10991-CHC-ROC · Registrar of Contractors · 2024-08-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Fairway Constructors Inc,
COMPLAINANT
v.
Justin Time Tile & Design LLC
License No. ROC 337186,
RESPONDENT
No. 2023A-10991-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 3, 2024 and July 17, 2024
APPEARANCES: Dan Oehler, Esq. represented Fairway Constructors, Inc. (Complainant). Justin Huseman represented Justin Time Tile & Design LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Fairway Exhibits 18, 21, 22, 28, 29, 30, 43-48, 49, P- 6 and P-9, 45, 46, P31 and P32 of Investigator Corlett’s Photographs from the Administrative Record of the Arizona Registrar of Contractors (Registrar or ROC).
_____________________________________________________________________
FINDINGS OF FACT
On May 20, 2024, the Registrar issued a Notice of Hearing setting the
above-captioned matter for hearing on June 21, 2024, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
2. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. § 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(22).
3. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
4. A hearing was held on July 3, 2024 and July 17, 2024.
5. At hearing, Complainant presented the testimony of Amir Mehdi Azarmi, Respondent’s qualifying party, and Erick Chee. Respondent’s owner, Justin Huseman, testified on behalf of Respondent.
6. Because the matter was consolidated with docket 2023A-12421-CHC-ROC, testimony was provided by Joe DeNoble and Stony Hazelwood.
7. Complainant hired Respondent as a subcontractor to install an RV garage and “man cave” at the residence of Joe DeNoble.
8. In or around May of 2022, Respondent started work in connection with the project.
9. Respondent stopped work in September of 2022.
10. On or about September 19, 2023, the Registrar received a complaint from Complainant alleging poor work on the part of Respondent.
11. Investigator Corlett conducted an initial jobsite inspection on October 27, 2023. Investigator Corlett discovered that Respondent performed poor work in connection with complaint items 1 through 3.
12. On January 26, 2024, the Registrar directed Respondent to correct complaint items 1 through 3, by appropriate means, no later than 5:00 p.m. on February 23, 2024.
13. Respondent failed to correct complaint items 1 through 3 by the deadline.
14. Respondent filed a timely answer to the Citation.
15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
16. At hearing, Investigator Corlett testified consistently with his job-site and compliance inspection notes.
17. Mr. DeNoble testified to the effect that the tile work did fell below minimum workmanship standards. During the time period for compliance under the Directive, after Mr. DeNoble received an email from Complainant regarding the corrective work that would be performed at his property, Mr. DeNoble gave the email to Mr. Hazelwood.
18. Mr. Hazelwood is a friend of DeNoble. Mr. Hazelwood explained that he and DeNoble communicated with Mr. Huseman at the beginning of the construction project. Mr. Hazelwood stated that he was involved in the project before the filing of the complaint to help ensure that the project was completed. Mr. Hazelwood stated that after the Directive was issued, he was present on the first day that the tile repair began. After that time, Mr. Hazelwood was present during the early morning of every day and in the evening to review the work that was completed. Mr. Hazelwood checked to make sure that workers checked in and out. Mr. Hazelwood told Mr. Huseman that if he needed more time to work, he must submit the request at least 24 hours in advance.
Mr. Hazelwood explained that he was present for both inspections with the Registrar.
19. Mr. Hazelwood stated that no one asked him to remove the handrails on the deck. When asked on cross examination whether he was in Arizona in charge of the project when Mr. DeNoble was not present, Mr. Hazelwood denied that he was in charge of the project. Mr. Hazelwood stated that he reported back to Mr. DeNoble that occurred in connection with the project. Mr. Hazelwood stated that he renounced anything “to do” with the project. Mr. Hazelwood stated that he told Complainant that he would no longer be helping them and everything “had to go through” Mr. DeNoble.
20. Justin Huseman is the owner of Justin Time. Respondent hired Justin Time as a subcontractor to perform the tile work for the project. Mr. Huseman stated at hearing that he asked Mr. Hazelwood if he would remove the handrails to repair the tile. Mr. Huseman stated that Mr. Hazewood responded, “absolutely not.” Mr. Huseman stated that Mr. Hazelwood managed the entire project. Mr. Hazelwood made sure that the workers signed in and out. Mr. Huseman directed all questions to Mr. Hazelwood because Mr. DeNoble was never present. Mr. Huseman stated that Mr. Hazelwood was his direct contact for the project. Mr. Huseman inquired with Investigator Corlett if he could force the homeowner to remove the handrails and Investigator Corlett responded, “no.” Mr. Huseman stated that Mr. Hazelwood told him that if he remained at the property after 2:00 p.m., Mr. Hazelwood would shut the door “on him.” Mr. Huseman testified that it would have taken him 16 hours to complete the tile work. Mr. Huseman explained that he would have needed to remove the handrails to properly correct the tile. Mr. Huseman testified to the effect that he was unable to make the repairs to the tile because Mr. Hazelwood did not allow him to correct the problem in the manner that he believed to be appropriate. I find Mr. Huseman’s testimony to be credible.
21. Mr. Azarmi testified to the effect that Mr. Hazelwood was the manager for the project.
22. Erick Chee, one of Complainant’s subcontractors, explained that explained that Mr. Hazelwood provided him with directives regarding the work.
23. Upon review of the evidence presented at hearing, the Administrative Law Judge concludes that Mr. Hazelwood managed the project on behalf of Mr. DeNoble. Furthermore, the evidence shows that Mr. DeNoble did now allow Respondent to remove the handrails to correct the tile work.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
6. The preponderance of the evidence shows that Respondent was denied the
opportunity to correct the tile work in the method that it deemed appropriate. Therefore, the Administrative Law Judge concludes that Respondent was denied reasonable access to correct the work listed in the Directive. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108(A), and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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, August 7, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Justin Time Tile & Design LLC
[email redacted]
Daniel J. Oehler, Esq.
[email redacted]
Fairway Constructors Inc.
[email redacted]
By: OAH Staff