ALJDEC - Licensing

2023A-11359-CHC-ROC · Registrar of Contractors · 2024-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Kasarskis,

COMPLAINANT

v.

Jasent Montano LLC

License No. ROC 318143,

RESPONDENT

No. 2023A-11359-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2024

APPEARANCES: Complainant James Kasarskis appeared via Google Meet on his own behalf. Investigator Miles Crosby appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 – 7 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Jasent Montano LLC. (Respondent) is the holder of License No. 318143 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 10, 2018, James Kasarskis (Complainant) agreed to have Respondent build a new home in Payson, Arizona. The contracted amount was $707,965.00.

On or about September 30, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Miles Crosby. The jobsite inspection was performed on October 24, 2023.

Investigator Crosby then issued a written directive on or about November 9, 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 1, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Improper installation of siding.

Investigator’s Observation: The siding was pulling away, cupping, and in some areas breaking (i.e. Corners at windows).

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: 2 - Siding lacks expansion gaps throughout exterior of house.

Investigator’s Observation: This item is in relation to Item #1. The siding was not installed correctly and areas are compressing and/or cupping.

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 - Pest control noted large gaps around soffits, roofline, garage trim, and corner trim.

Investigator’s Observation: The Complainant was forced to protect his property and corrected the issue with by others. It should be noted that the openings noted do not meet standards and should be corrected to prevent further infestation.

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: 5 - Framing has gaps around eaves, siding, and roofline.

Also, there is an issue with the kitchen island framing, which is causing the kitchen island to sink into the basement

Investigator’s Observation: This statement is two items. The Complainant included framing as part of this item due to the island issue. The Respondent should correct both by appropriate means. Any framing gaps not corrected by others should be corrected by appropriate means. The Island tile issue should be investigated to determine the cause and corrected by appropriate means.

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 - Tile is sinking, cracking and separating in the kitchen and other areas.

Investigator’s Observation: Grout is popping and multiple cracked tiles.

Respondent noted the thinness of the tiles as a cause. If the tile manufacture provides floor installation then this should be corrected. If it does not allow for floor installation, there should be documentation waiving the Respondent of responsibility and signed by the Complainant. No documents provided.

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 - Subfloor cracking is causing flooring issues

Investigator’s Observation: Area where the wood flooring and tile meet in the kitchen have a poor transition. Area should be examined and determine

the cause and corrected by appropriate means.

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 - Exterior stone ledger has workmanship issues, large gaps at roofline, around trusses and exterior lights and camera.

Investigator’s Observation: Multiple areas not finished allowing animals to freely enter. The back patio Arizona Room does not seal around the stone areas.

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 - Sliding glass doors aren’t functioning due to improper threshold sloping.

Investigator’s Observation: Multiple doors not square and do not close properly.

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 - There is gap penetration at AC condenser line.

Investigator’s Observation: The gap has been filled with spray foam but does not meet standards as the foam is not designed for direct exterior weather exposer.

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 - Roof lacks flashing in many areas and two eaves were left open with full access to the attic.

Investigator’s Observation: Multiple areas corrected by the Complainant/others. Areas not corrected should be corrected by appropriate means.

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: 15 - There are cracks in the drywall and dents in some corners. Mr. Montano said not to worry about that until we did our final one or two year walk thru.

Investigator’s Observation: Any cracks from natural settling should be corrected by appropriate means. Any dents or damaged areas cannot be determined who is responsible and no correction needed.

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: 16 - The garage floor was left an absolute mess with paint and drywall stains that were supposed to get cleaned but never were.

Investigator’s Observation: Respondent advised he was not given the opportunity to clean the garage floor due to Complainant items being stored there. If the Complainant removes the items from the garage the Respondent should clean.

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 December 13, 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 December 28, 2023, Respondent e-mailed an Answer to the Registrar.

On or about January 11, 2024, a Notice of Hearing was issued setting a hearing on February 26, 2024 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Crosby testified that Respondent failed to appear at the Jobsite Inspection. However, Mr. Montano would be in regular e-mail contact with Investigator Crosby.

Further, Investigator Crosby testified extensively as to the issues contained in items 5, 6, and 7, as to the kitchen island, and flooring as referenced the pictures from the Jobsite Inspection to demonstrate the issues.

In addition, Investigator Crosby testified that sliding glass doors were apparently “fixed” by Respondent prior to his inspection, but that the “fix” made the condition almost worse. Investigator Crosby also noted many areas where there were gaps around the soffits, roofline and trims which allowed pests inside of Complainant’s house.

Finally, Investigator Crosby testified that despite the e-mails from Respondent, no corrective work was apparently performed, thus the Citation was issued without a Compliance Jobsite Inspection.

James Kasarskis testified on his own behalf. He testified generally that Investigator Crosby thoroughly described the issues which were part of his Complaint.

Mr. Kasarskis testified though that Respondent fixed the stone ledger as referenced in Complaint item 8, however, Respondent would not make any further repairs without Complainant purchasing the materials first.

The tribunal also notes that both the January 11, 2024, Notice of Hearing from the Registrar and the Order from OAH that same date were sent to Respondent at his address of records.

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 13, 2024. Such prior License record reflected that Respondent’s License No. 318143 was first issued on February 12, 2018, and reflected that there were two open cases, one of which was the present complaint. The record also reflected that as of March 1, 2023, Respondent’s license was suspended for non-renewal.

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. The siding was incorrect as it was pulling away and lacked expansion gaps throughout the exterior including the air conditioning condenser line; there were large gaps around the soffits, roofline and trim; there was sinking, cracking and separating of tile in the kitchen and the kitchen island appeared to be sinking into the basement; the sliding glass doors were non-functioning; and cracks in the drywall and dents in some corners. 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 Complainant’s testimony only the stone ledger gaps were corrected, and everything else was left uncorrected. Further, it was unreasonable for Respondent to demand Complainant pay for materials to repairs Respondent’s work, and does not find that this was a legal excuse for not following the 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 No. 318143 for a period of ten 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 13, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jasent Montano LLC

[email redacted]

James Kasarskis

[email redacted]

By: OAH Staff