ALJDEC - Licensing
2023A-11100-CHC-ROC · Registrar of Contractors · 2024-09-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Stuart Johnson,
COMPLAINANT
v.
Edgewater Design Company LLC
License No. ROC 312050,
RESPONDENT
No. 2023A-11100-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 5, 2024
APPEARANCES: Complainant Stuart Johnson appeared on his own behalf via Google Meet. Respondent Edgewater Design Company LLC was represented by Marcus Tappe who appeared via Google Meet. The Registrar of Contractors Investigator Todd Anderson appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-3.
_____________________________________________________________________
FINDINGS OF FACT
Edgewater Design Company LLC (Respondent) is the holder of License No. 312050 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 8, 2021, Complainant hired Respondent to remodel his backyard at his home in Chandler, Arizona. The contracted amount was $285,000.00.
On or about September 23, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the present complaint to Investigator Todd Anderson. The jobsite inspection was performed on November 15, 2023.
At the Jobsite Inspection the parties had come to an agreement to allow Respondent time to complete the work. Because of this, Investigator Anderson issued a Dismissal Letter on November 22, 2023.
On April 8, 2024, the matter was re-opened, and Investigator Anderson conduction a jobsite investigation on April 29, 2024.
Investigator Anderson then issued a Written Directive on or about April 30, 2024, which provided in pertinent part 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 May 17th, 2024.
...
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Roofing for the Ramada has not been completed.
Plants and rocks have not been installed.
Investigator’s Observation: At the time of the original Jobsite Inspection conducted on November 15th, 2023, I had observed a total backyard remodeling project which had started nearly two years earlier (December 28th, 2021) which was still not completed; however, it appeared as though the homeowner and contractor had come to some sort of an understanding for the completion of the work and so the complaint was dismissed. As of April 29th, 2024, this project has still not been completed. The remaining items are as follows: install cabinetry in the Ramada, finish installing floor heads for the pool, fireplace in the Ramada is not hooked up (Propane), glass for the fireplace not installed, install roofs for both the kitchen and Sun Decking, complete outdoor lighting for Ramada, Sport Court lighting to be adjusted, sealing of the waterfall, path lights missing by Sport Court, install Ramada Heaters, Intell Center Pool App to work and panel reset. Contractor should complete the project by appropriate means. All work needs to be completed as per contract, manufacturer’s specifications, change orders, local building codes, and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar;
Namely A.A.C. 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 contained in the original).
On May 23, 2024, 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(b); and A.R.S. § 32-1154(A)(22).
On or about June 7, 2024, Respondent submitted an Answer to the Registrar.
On or about June 19, 2024, a Notice of Hearing was issued setting a hearing on August 7, 2024, at the Office of Administrative Hearings, an independent state agency.
After a continuance, the hearing was held on September 6, 2024.
At hearing, Investigator Anderson testified as to the Registrar’s involvement and the above timeline and findings from his inspections.
Investigator Anderson testified that her preformed a prehearing inspection on September 3, 2024, and found that all items but for the cabinets in the Ramada area, and the glass installation for the fireplace had been completed. However, he also noted that some of the plants which were planted had died, and therefore needed to be replaced.
Complainant testified that despite Respondent continuing to work on the project, he wanted to hold Respondent accountable for the significant delays in completing this project.
Further, Complainant testified that he believed the floor heads in the pool were installed incorrectly; the glass for the fireplace, while at his residence, had not been installed; the sport court lights needed adjusting, and that there were issues with heating the Jacuzzi while the waterfall was active.
Matt Palmer was Respondent’s owner. He acknowledged that there were a few issues remaining and that Complainant and his wife had been great to work with during this project.
However, Mr. Palmer testified that he needed to replace some of the dead plants due to the summer’s extreme heat; he needed to install the glass on the fireplace and take care of the scratches; adjust the lights on the sport court; and obtain the cabinet shelves.
Administrative notice was taken of Respondent’s prior License record on September 20, 2024. Such prior License record reflected that Respondent’s License No. 312050 was first issued on April 29, 2013, and was currently suspended as of August 15, 2024, due to a lack of Qualifying Party. The License record also reflected that there was one open case, namely the present case, and one disciplined case.
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 completed 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 complete the corrective work following the Directive being issued.
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. 312050 for a period of three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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, September 20, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Stuart Johnson
[email redacted]
Marcus D. Tappe
[email redacted]
By: OAH Staff