ALJDEC - Licensing

2023A-11153-CHC-ROC · Registrar of Contractors · 2024-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jani Alverson,

COMPLAINANT

v.

Kortsen Pebler LLC

License Nos. ROC 328611 & 332775

RESPONDENT

No. 2023A-11153-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2024

APPEARANCES: Complainant Jani Alverson appeared via Google Meet on his own behalf. Investigator Patricia Schuette 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

Kortsen Pebler LLC. (Respondent) is the holder of License Nos. 328611 & 332775 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 1, 2022, Jani Alverson (Complainant) agreed to have Respondent build a new home in Queen Creek, Arizona. The contracted amount was $350,000.00.

On or about October 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Patricia Schuette. The jobsite inspection was performed on November 7, 2023.

Investigator Schuette then issued a written directive on or about November 22, 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 December 12, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1-No water to hose bib on north side front property or the hose bib in the back of the house.

Investigator’s Observation: Verified. Neither hose bib had running water. Respondent to identify cause and repair within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 2-Very large crack in cement garage floor.

Investigator’s Observation: Verified. A few cracks in the slab exceed the tolerance. Cracks in excess of 3/32” width, or 1/8” vertical displacement or compound cracks in excess of 1/16” in width are not acceptable. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 3-Sliding door to back does not lock, screen door fell off.

Investigator’s Observation: Verified. The sliding glass door does not lock. Respondent to repair within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 5-Hole in the wall where gas line is to the stove.

Investigator’s Observation: Verified. There is a hole on both sides of the wall closer towards the floor. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 6-Plates left off walls.

Investigator’s Observation: Verified. There are a couple missing wall plates. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 7-Acessories such as toilet paper holders, outside sconces, door handles, and light fixtures are loose and coming out of the wall.

Investigator’s Observation: Verified. There are multiple fixtures that are not secure and loose. Respondent to identify all and correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 8-Garage door is very hard to open.

Investigator’s Observation: Verified. The house to garage door handle is difficult to turn to open door. Respondent to repair within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 10-Hole in foundation outside of guest bathroom exposing sunlight into the bathroom.

Investigator’s Observation: Verified. There is a large void approximately 12” wide and 4-5” in height in the stem wall/foundation that exposes the sewer lines to the bathroom. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 11-Wires sticking out of the ceiling fan mount, light fixture is mounted off center so the hole is exposed.

Investigator’s Observation: Verified. The ceiling fan mount has one of the wires that is visible outside of the mount and it is either off center or the hole was cut too big in the drywall leaving a gap. Respondent to repair within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 12-Built in shelves don’t have proper support and the one in the laundry room area broke.

Investigator’s Observation: Verified. The shelves appear to be too wide for the support provided causing initial bowing and eventual collapse.

Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 13-Unfinish floor throughout. We were supposed to have hard floor LVP or tile throughout the common areas and bedroom were going to be carpet which you can see on the project estimate attached. Dawson made a verbal agreement to a polished cement (similar to the flooring in Dawsons office) in the main areas and it was left unfinished and there no carpet.

Investigator’s Observation: Verified. There is ground down concrete throughout the house however, it does not appear to have a densifier applied to harden and seal the surface. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 14-Outside fireplace looks like its build on his property next door but is supposed to be on our property (the propane tanks are on ours) or its built on an easement. Fireplace doesn’t work.

Investigator’s Observation: Verified. Either the fireplace was not installed or it was installed on the adjoining property. The fireplace on the adjoining property is not operable. Respondent to correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 16-No soft close hinges on any cabinets.

Investigator’s Observation: Verified. There were multiple cabinets that did have the soft close installed but not all. Respondent to identify which are missing and correct within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 17-Cracks underneath front exterior window, and around the south side of the house.

Investigator’s Observation: Verified. There is some stucco cracking that is at 1/16” or wider on the south side of house. Cracks that are at or exceed

1/16” should be corrected one time within the first year. It was also noted on the SE corner of the garage stem what where the concrete has popped away from the foundation strap. Respondent to repair within appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original).

On December 26, 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 January 10, 2024, Respondent e-mailed an Answer to the Registrar.

On or about January 23, 2024, a Notice of Hearing was issued setting a hearing on March 5, 2024 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Schuette testified that Respondent failed to appear at the Jobsite Inspection. However, Respondent left a voicemail on December 11, 2023, as well as an e-mail on December 12, 2023, stating that it had intentions of filing a civil suit against Complainant because of neglect and abuse. Investigator Schuette also testified that the message claimed that Complainant modified the property so the Complaint should be dismissed.

Further, Investigator Schuette testified that none of the items on the Written Directive were modified by Complainant, and that most of the items could have been repaired in 15-20 minutes, so she believed that the time to complete the Written Directive was sufficient. Investigator Schuette testified that on December 13, 2023, she spoke with Complainant who informed her that no corrective work had been performed.

In addition, Investigator Schuette testified that while Respondent requested the hearing, its licenses are currently listed as “voluntary inactive”.

Jani Alverson testified on her own behalf. She testified generally that the Respondent failed to contact her once the Directive was issued and that Investigator Schuette thoroughly described the issues which were part of her Complaint.

Ms. Alverson testified that the crack in the foundation had now circled back and was twice the size as it was from the initial Complaint.

The tribunal also notes that both the January 23, 2024 Notice of Hearing from the Registrar and the Order from OAH that same date were sent to Respondent at his address of record.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on March 20, 2024. Such prior License record reflected that Respondent’s License No. 328611 was first issued on April 24, 2020, and reflected that there were two open cases, one of which was the present complaint. Such prior License record reflected that Respondent’s License No. 332775 was first issued on March 25, 2021, and reflected that there were zero open cases. Both licenses were listed as “Inactive” as of September 29, 2023.

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. Fourteen of the seventeen Complaint items were verified by Investigator Schuette. Respondent failed to present any credible evidence to dispute the same. 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 complete the corrective work following the Directive being issued. Per Investigator Schuette’s testimony, Respondent voluntarily placed his licenses on inactive status. While this could have prevented Respondent from completing the corrective work, the evidence also established that there was no other settlement to otherwise satisfy the Written Directive. 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 Nos. 328611 & 332775 for a period of thirty 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, March 20, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Kortsen Pebler LLC

[email redacted]

Jani Alverson

[email redacted]

[email redacted]

By: OAH Staff