ALJDEC - Licensing

2023A-11276-CHC-ROC · Registrar of Contractors · 2024-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Spencer Wilde,

COMPLAINANT

v.

Stephen Thomas Latimore

DBA: CJ Latimore Construction

License No. ROC 118118,

RESPONDENT

No. 2023A-11276-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 29, 2024 and November 5, 2024.

APPEARANCES: Complainant Spencer Wilde appeared on his own behalf via Google Meet. Respondent Stephen Thomas Latimore was represented by Michael R. Ellsworth, Esq. who appeared via Google Meet. The Registrar of Contractors Investigator Miles Crosby appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits A-B.

_____________________________________________________________________

FINDINGS OF FACT

Stephen Thomas Latimore (Respondent) is the holder of License No. 118118 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 1, 2020, Complainant hired Respondent to construct a residence in Show Low, Arizona. The contracted amount was $650,133.00.

On or about September 27, 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 Miles Crosby. The jobsite inspection was performed on January 22, 2024.

Investigator Crosby then issued a Written Directive on or about February 5, 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 February 28, 2024.

...

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Added a step in garage entry hallway that is a tripping hazard and not on the plans

Investigator’s Observation: This does not meet Industry Standards and creates an unnecessary hazard.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 3 - Fireplace mantle not built to manufacturers specs. and get very hot, concerned for fire safety

Investigator’s Observation: The Manufacturer Installation Instructions prohibit combustible material be install in this manner.

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 - Poor grading led to water getting under the house

Investigator’s Observation: Grading in the rear portion of the house forces water to travel along the stem wall to drain.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 5 - Subfloor has multiple waves/humps in the floor

Investigator’s Observation: The marriage line at the kitchen to great room connection and hall to great room connection has a greater than minimum standards slope tolerance.

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 - Cracks in stem wall where water got under the house

Investigator’s Observation: I observed the cracks from the inside of the crawl space. The exterior was being worked on by an employee who was removing the block faces to determine the cause. Item #4 is the root cause of this due to the saturation of the ground moisture through the block into the crawl space.

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: 7 - Cracks in concrete

Investigator’s Observation: Cracks greater than industry standards.

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: 8 - Cabinet pulling away from wall in laundry room

Investigator’s Observation: I observed the cabinet as described.

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: 9 - Boards supporting deck were/are not painted, exposed to rain and snow

Investigator’s Observation: Multiple areas where boards are exposed to weather elements.

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: 10 - Caulking all over the exterior of the house

Investigator’s Observation: Touch up was not done according to

manufacturer’s instructions.

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: 11 - Closet door in primary bedroom not hanging

correctly

Investigator’s Observation: Closet door has a 1/4" gap at the latch side head stop.

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: 17 - Roof tiles have holes in them and are loose in places

Investigator’s Observation: Complainant is referencing the Asphalt

Shingles. Multiple areas do not meet standards. Nails and screws left on the roof. Lack of adhesion or use of roofing adhesive products.

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: 18 - Roof tiles are not lapped correctly

Investigator’s Observation: Although there are applications for different styles of valley roofing, the use of woven valleys is not recommended with architectural shingles.

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: 19 - Flooring in hallway doesn't go all the way to the wall

Investigator’s Observation: Flooring planks being cut too short in areas. Planks ends under the baseboard are exposed at time due to the planks either shifting so the gap under the baseboard is now visible or the planks pull apart, creating gaps from plank to plank. As this is a floating floor it is appropriate for some movement but the planks were not cut to manufacture recommendations.

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: 20 - Posts on all 3 decks are loose in mobile

Investigator’s Observation: Several posts are not adequately secured and move approximately an 1".

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 February 5, 2024, Investigator Crosby issued an extension of time until March 30, 2024 to complete the Written Directive.

Investigator Crosby conducted a Compliance Jobsite Inspection on April 15, 2024. In his notes regarding the same Investigator Crosby noted the following in pertinent part:

This case was submitted to the ROC on 9/27/23 and a JSI was held on 10/17/23. At the JSI the parties attempted to resolve the matter and the Complainant requested the complaint closed in order to allow the Respondent an opportunity to complete the Punch List items.

On 12/28/23, the Complainant requested the case be reopened after very little work was corrected.

I did another JSI on 1/22/24 and a Written Directive was issued with a due date of 2/28/23. During this time the Complainant had health issues and an Extension was granted for 3/30/24.

Due to scheduling around the Complainants availability the Compliance Inspection was conducted on 4/15/24.

At the time of the inspection, the Respondent still had employees working on the residence and had not completed many of the items or did not correct them by appropriate means.

While inspecting the roof I inquired who installed the roof. The Respondent advised his employee did but would not advise who. As the Respondent does not have any W2 employees, this would be a violation of A.R.S. §§ 32-1154(A)(9) and (13).

While discussing the roof the Respondent advised the woven valley was appropriate and that he could not find any information regarding this not being correct. I advised that I had already researched it and the industry standard as well as the manufacture advised against woven valleys. The Respondent began getting very aggressive and arguing. I moved away from his, as we were on a roof, and did not want either of us to fall. The Respondent asked is I was scared of him and I advised him why I was moving away and that the encounter was being recorded.

Once back on the ground, I easily looked up the installation instructions for the shingles and advised the Respondent of my findings. The Respondent later text me an apology.

Ultimately the Respondent has not complied with the Written Directive and more than reasonable timeline to correct the issues by appropriate means.

Compliance Findings:

Compliance Item: 2 - Added a step in garage entry hallway that is a tripping hazard and not on the plans

Compliance Observation: This item was not completed at the time of the CJSI and was in progress by an employee of the Respondent.

Investigator’s Observation: This does not meet Industry Standards and creates an unnecessary hazard.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 4 - Poor grading led to water getting under the house

Compliance Observation: There was attempt to correct the grading however, in this attempt a vent for the crawl space was covered with soil and will allow seepage. The attempt to correct the issue was done by the use of Polyethylene tarp which is appropriate but the soil was not permitted to dry out prior to covering and locking in the moisture. As a result, there is still mushrooms growing in the crawl space and the soil is still saturated. The appropriate crawl space actions would have at a minimum to install a dehumidifier and correct the exterior penetration issues.

Investigator’s Observation: Grading in the rear portion of the house forces water to travel along the stem wall to drain.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 5 - Subfloor has multiple waves/humps in the floor

Compliance Observation: During the inspection, the Respondent was advising the Complainant that the structural beam is designed to have a camber and could be corrected. No effort has been made at this point and although the statement by the Respondent is correct, the camber is not the issue. The issue is that fall perpendicular to the beam and not parallel indicating the beam was set too high or excessive settling is occurring. Either way, no action was taken to correct.

Investigator’s Observation: The marriage line at the kitchen to great room connection and hall to great room connection has a greater than minimum standards slope tolerance.

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 - Cracks in stem wall where water got under the house

Investigator’s Observation: I observed the cracks from the inside of the crawl space. The exterior was being worked on by an employee who was removing the block faces to determine the cause. Item #4 is the root cause of this due to the saturation of the ground moisture through the block into the crawl space.

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: 7 - Cracks in concrete

Compliance Observation: No effort was made to correct and the concrete still has cracks greater than industry standards.

Investigator’s Observation: Cracks greater than industry standards.

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: 12 - Lock on garage door realigned but left wood chiseled, unpainted, and missing screws, screws not put all the way back in.

Compliance Observation: Not shown or observed due to the greater issues and aggression by the Respondent.

Investigator’s Observation: No workmanship issues observed.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 13 - Wall light switch plates do not sit flush against the wall

Compliance Observation: Not shown or observed due to the greater issues and aggression by the Respondent.

Investigator’s Observation: Walls and plates meet tolerance for bow/plumb alignments

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 14 - Multiple nails popping through the drywall(repaired many of them in July, still more popping through),

Compliance Observation: Areas corrected.

Investigator’s Observation: Corrected prior to JSI.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 15 - Drywall ridging in bowing in multiple areas

Investigator’s Observation: Walls within tolerance.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

Compliance Item: 16 - Base boards are not even or sanded

Compliance Observation: Multiple areas still not corrected by appropriate means.

Investigator’s Observation: Multiple areas do not meet industry standards.

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: 17 - Roof tiles have holes in them and are loose in places

Compliance Observation: Roof was not corrected by appropriate means.

Investigator’s Observation: Complainant is referencing the Asphalt Shingles. Multiple areas do not meet standards. Nails and screws left on the roof. Lack of adhesion or use of roofing adhesive products.

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: 18 - Roof tiles are not lapped correctly

Compliance Observation: The Roof was not corrected by appropriate means.

Investigator’s Observation: Although there are applicable applications for different styles of valley roofing, the use of woven valleys is not recommended with architectural shingles.

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: 20 - Posts on all 3 decks are loose in mobile

Compliance Observation: Posts not corrected by appropriate means and still have excess movement.

Investigator’s Observation: Several posts are not adequately secured and move approximately an 1".

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: 21 - Board on rear deck has a screw all the way through it and not holding board down

Investigator’s Observation: Corrected prior to JSI.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

On April 24, 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(a); A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158; A.R.S. § 32-1154(A)(9)(a); and A.R.S. § 32-1154(A)(22).

On or about May 8, 2024, Respondent submitted an Answer to the Registrar.

On or about May 31, 2024, a Notice of Hearing was issued setting a hearing on July 9, 2024, at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on August 29 and November 5, 2024.

At hearing, Investigator Crosby testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Crosby testified that while the Complaint was originally filed on September 27, 2023, the parties had agreed to cancel the initial Jobsite Inspection and the matter was closed. However, on December 28, 2023, the case was re-opened as the matter was not resolved.

Investigator Crosby testified that by the Complainant Jobsite Inspection in April, many issues were still not corrected, and although Mr. Latimore had a health crisis during the corrective work period, he sent workers to complete the project.

Further, Investigator Crosby testified that the parties’ contract was missing numerous statutorily required items, such as start/completion date, and the “right to file language.” Too, Investigator Crosby testified that the workers Respondent used were unable to be verified as employees, therefore he charged Respondent with aiding and abetting in unlicensed contracting.

Dr. Wilde testified that he wanted his home to be safe and up to standards. Further, testified that there have been new issues with cracking since the Compliance Jobsite Inspection.

In addition, Dr. Wilde testified that while some items had been repaired several remained incomplete including but not limited to the roofing flooring and foundation issues.

Mr. Latimore testified that he had been licensed since 1996, and has had only one other complaint.

Mr. Latimore testified that all of the flooring, roof and building was done to specifications, and passed inspections from the city of Show Low. Further, Mr. Latimore testified that he exceeded plans for the stem walls. Mr. Latimore testified that the City of Show Low had to inspect the grading before they issued the Certificate of Occupancy.

Also, Mr. Latimore agreed that there were some issues with the roof which needed to be cleaned up and/or repaired. As to the cracking, Mr. Latimore believed that this was caused by the landscaper and addition of pavers, as he received a Certificate of Occupancy from the city of Show Low.

In addition, Mr. Latimore testified that there may have been some cell areas which grout did not reach.

Mr. Latimore testified that some items may have been repaired but not all such as some caulking.

Mr. Latimore testified that he hired unlicensed contractors installed the roof, but Louis was supervising the work, but also was not licensed. Mr. Latimore also did not know why the roofers placed two different valleys.

Administrative notice was taken of Respondent’s prior License record on November 19, 2024. Such prior License record reflected that Respondent’s License No. 118118 was first issued on October 17, 1996, and reflected that there was one open case, namely the present 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 within workmanship standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence also established that the parties contract did not meet the requirements of A.R.S. § 32-1158, therefore, Respondent was in violation of A.R.S. § 32-1154(A)(12).

The preponderance of the evidence established that the workers used by Respondent were not licensed nor full-time employees of Respondent. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(9)(a).

Finally, the preponderance of 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. 118118 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.

It is further recommended that within thirty days following the effective date of the Registrar’s final order, Respondent provide an sample contract to the Registrar which complies with A.R.S. § 32-1158. Should Respondent fail to do so, it is recommended that Respondent’s license remains suspended until full compliance.

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, November 19, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Michael Ellsworth, Esq.

Riggs Ellsworth & Porter PLC

[email redacted]

Spencer Wilde

[email redacted]

By: OAH Staff