ALJDEC - Licensing

2023A-11185-CHC-ROC · Registrar of Contractors · 2024-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

April Petersen ,

COMPLAINANT

v.

Edgewater Design Company LLC,

License No. ROC 312050,

RESPONDENT

No. 2023A-11185-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 30, 2024

APPEARANCES: April Edgewater appeared on her own behalf. Marcus Tappe, Esq. appeared as counsel for Respondent. Witness Matt Palmer appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Complainant’s exhibits “IMG_7122 through IMG_7129,” “Door Quotes,” “PDF copy: QCInspector5_28_24,” “TownQCfailedvspassed,” “MattsEmailsROCproof1,” “MattsEmailsROCProof2” and “Response Text Thread w Matt” were admitted. Respondent’s exhibit 5 was admitted.

_____________________________________________________________________

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 June 1, 2022, April Peterson (Complainant) entered into a contract with Respondent for, among other things, the building of a casita.

On or about September 26, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Patricia Schuette. After a jobsite inspection, Investigator Schuette issued a written directive 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 5, 2023.

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1-The Casita- it was supposed to be done by March and is still failing inspections. The last work was done almost a month ago which was electrical. Prior to that, it has been several months with no work.

Investigator’s Observation: Verified. There are many reasons that cause delays in construction however, there is an expectation that work be done in a timely manner.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

. . . . .

Complaint Item: 3- Installing the pool heater and replacing the large light. Investigator’s Observation: Verified. It was noted that the heater was able to heat the pool and spa but it just needed to be set up to do both as separate was an option. Respondent to get system set up to function as contracted. The larger pool light does have a slightly different shade of blue from the smaller lights but it appears that the correct light is installed. No action required on the light.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

After the deadline in the directive expired, Investigator Schuette was notified that minimal work had been done on the casita and no programming or set up on the pool heater had occurred since the jobsite inspection.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Schuette testified consistently with the findings of facts, her jobsite inspection (JSI) notes, and written directive. Investigator Schuette further testified that there were many reasons that delays could arise, but there was an expectation that work be done in a timely fashion. She further testified that she cited Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) not for the quality of work completed, but rather because workmanship also included completing the job in a timely fashion and moving the project forward. She testified that the pool heater still needed to be set up.

Investigator Schuette further testified that she was copied on an email between the parties regarding the windows and doors having been ordered and relaying that HVAC was supposed to arrive on December 11, 2023. Given this, Investigator Schuette requested a schedule or plan from Respondent in order to consider an extension on the written directive. Investigator Schuette testified that she advised Respondent she would grant an extension on the written directive deadline so long as Respondent provided her a schedule by the next business day. Investigator Schuette never received any schedule or plan.

Investigator Schuette further testified that the deadline of December 5, 2023 in the written directive was not a deadline to complete the entire project. Rather, at the time of the JSI, Investigator Schuette and Respondent had a conversation regarding the expectation of moving the job forward and what it would take to complete the job. Respondent advised her that it would take approximately 2 months. At the time Investigator Schuette issued the written directive with a December 5, 2023 compliance deadline, she knew she would re-evaluate the project in order to make a determination as to whether to grant extensions based on the progress being made.

Investigator Schuette had further communication with Respondent in which Respondent stated that the windows and doors would arrive the week of January 25, 2024, the stucco would be done the week after the windows, followed by the cabinets, and a total completion of the project by February or March, 2024.

With that information, Investigator Schuette scheduled a compliance JSI for January 23, 2024 in order to determine the current state of the project. At that time, Investigator Schuette noted the work that had been completed from the date of the initial inspection to be minimal HVAC work and some duct work. Between the time of the compliance JSI and February 13, 2024, Investigator Schuette confirmed with Complainant that the circumstances had not changed. Investigator Schuette verified that nothing had transpired since the compliance inspection. She did not feel that an extension was warranted. Because it appeared that, from mid to late December, 2023 through the date of the compliance JSI that no additional work had been performed, Investigator Schuette referred the matter to the Registrar’s legal department on February 13, 2024.

Complainant testified that she contracted with Respondent for the construction of a backyard pool and the building of a casita for her parents. Respondent advised her that the project would be done by March 2023, which was the reason she chose Respondent of all of the contractors she interviewed. She testified that everything was moving along fine until January 2023 when she and Respondent began to have communication issues.

Complainant testified that Respondent used a program called Buildertrend and that this program was used to communicate the status of the project. The last time she checked Buildertrend, the project completion date was supposed to be February 2023 and that it still has not been updated. She further testified that Respondent repeatedly made promises that workers would show up and they did not. Complainant testified that Respondent advised her that a truss had been drilled through by the HVAC contractor that would require an engineer and blamed the delay on that issue.

Complainant further testified that she still does not have administrative access to the pool heater. She has guest access. She testified that she did not have a pool heater for the entire winter, but finally got it connected because she paid out of pocket to have it completed.

Matt Palmer, owner of Edgewater Design Company LLC, testified on behalf of Respondent. Mr. Palmer testified that he never gave a completion date to Complainant and never puts an anticipated completion date in his contracts because he is unable to anticipate completion dates due to a number of unknown factors such as weather and personnel.

Mr. Palmer testified that Complainant and Respondent entered into a contract in June, 2022 and Respondent completed the backyard and pool installation. The last thing to complete was the casita. The biggest delay he experienced was due to staffing issues and permitting. He further testified that Semper Fi, his HVAC contractor, cut a truss and he was having difficulties finding an engineer that would take on the project. Without this, he could not move forward. As of now, he has found an engineer.

Administrative notice is taken of Respondent’s prior License record on June 5, 2024. Such prior License record reflects that Respondent’s License No. 312050 was first issued on March 7, 2017, and is currently active. Such prior License record also reflects that there were two total open complaints, inclusive of the current one, and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent did attempt to complete some work on the project and was engaged in some communication with Complainant during the course of the project. Therefore, the evidence did not establish that Respondent abandoned the contract in violation of Ariz. Rev. Stat. § 32-1154(A)(1).

The evidence established that Respondent failed to provide a schedule to Investigator Schuette as requested. The evidence further established that between the time of the initial JSI on October 30, 2023 and the time of the compliance JSI on January 23, 2024, minimal work had been completed. Even though the truss was cut, and it was Respondent’s testimony that this was the reason no further work could occur, it took Respondent no less than at least three months to find an engineer to work on the project. This is not timely.

Additionally, the evidence established that Respondent failed to set the pool heater up to function as intended.

The evidence established that Respondent’s work, therefore, was not in conformity with the Registrar’s standards. Complainant established that Respondent did not complete the project in a workmanlike manner because the forward progression on the project was not timely in addition to not correcting the pool heater programming as instructed, in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not attempt 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 Ariz. Rev. Stat. § 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 3 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. § 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. § 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, June 11, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff