ALJDEC - Licensing

2023A-11438-CHC-ROC · Registrar of Contractors · 2024-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Emily Androsky ,

COMPLAINANT

Avante Design Build LLC

License No. ROC 328982,

RESPONDENT

No. 2023A-11438-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 11, 2024, 1:00 P.M.

APPEARANCES: Complainant Emily Androsky appeared on her own behalf; no appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger Geddes

EXHIBITS ADMITTED INTO EVIDENCE: None submitted

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Avante Design Build, LLC (Respondent), is the holder of License Number 328982 issued by the Registrar of Contractors (Registrar).

2. On or about October 2, 2023, Emily Androsky (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment by Respondent in connection with the building of an RV garage at a residence in Peoria, Arizona (“project”).

3. The Registrar performed an inspection of the project on November 2, 2023. Thereafter, the Registrar issued a Written Directive, dated November 4, 2023 (Directive), requiring Respondent to remedy the following violations by appropriate means by November 21, 2023:

Compliance Item: 1 - Project timeline- this project was orally told it would be done in 6 months

Investigator’s Observation: Project was originally contracted in April of 2021 and the project is not completed as of the date of inspection. Complainant and respondent are coordinating on completing all needed touchups and a final punch list to be completed. One specific issue pointed out at inspection is that the shower in the second floor of the detached garage has had the incorrect shower glass installed. The contract does not identify a specific shower door to be used, however, the glass door installed was reportedly purchased by complainant for a different bathroom and mistakenly installed by employees of respondent. Glass appears to be a 60" door which has been modified to fit the reduced shower space. When the door is fully open, the opening of the shower glass measures 14 3/4". Per section P2708.1.1 of the 2018 IRC, "The shower compartment access and egress opening shall have a clear and unobstructed finished width of not less than 22 inches (559 mm)." Respondent shall complete all punch list items discussed with the complainant, per contract and per all relevant building codes, by appropriate means.

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.

Compliance Item: 4 - My city permit was almost expired because its been 2 yrs and project is still not competed

Investigator’s Observation: City of Peoria permit no. 2102407 was originally issued in September of 2021 and as of date of inspection is still open pending final inspection. Respondent shall address any and all issues outlined by the building official in order to pass final inspection for this project by appropriate means. Respondent is not responsible to correct any potential code violations due to work performed by others.

4. The Registrar performed a Compliance Inspection on December 7, 2023, and made the following findings:

Compliance Item: 1 - Project timeline- this project was orally told it would be done in 6 months Investigator’s Observation (Initial Inspection): Project was originally contracted in April of 2021 and the project is not completed as of the date of inspection. Complainant and respondent are coordinating on completing all needed touchups and a final punch list to be completed. One specific issue pointed out at inspection is that the shower in the second floor of the detached garage has had the incorrect shower glass installed. The contract does not identify a specific shower door to be used, however, the glass door installed was reportedly purchased by complainant for a different bathroom and mistakenly installed by employees of respondent. Glass appears to be a 60" door which has been modified to fit the reduced shower space. When the door is fully open, the opening of the shower glass measures 14 3/4". Per section P2708.1.1 of the 2018 IRC, "The shower compartment access and egress opening shall have a clear and unobstructed finished width of not less than 22 inches (559 mm)." Respondent shall complete all punch list items discussed with the complainant, per contract and per all relevant building codes, by appropriate means.

Investigator’s Observation (Compliance Inspection): Project is still not complete and no modifications have been made related to the shower opening. This issue remains unresolved. Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(b) Building Codes

Compliance Item: 4 - My city permit was almost expired because its been 2 yrs and project is still not competed Investigator’s Observation (Initial Inspection): City of Peoria permit no. 2102407 was originally issued in September of 2021 and as of date of inspection is still open pending final inspection. Respondent shall address any and all issues outlined by the building official in order to pass final inspection for this project by appropriate means. Respondent is not responsible to correct any potential code violations due to work performed by others. Investigator’s Observation (Compliance Inspection): As of the date of compliance inspection, City of Peoria permit no. 2102407 is still open and the city issued a correction notice at the most recent 11/22/2023 inspection, citing the following: “Provide city approved plans for inspection. Plans on site not matching electrical service from main panel to sub panel at Casita, ie: connection at main panel, panel schedules, breaker sizes and wiring. Plans call for a standard water heater, tankless installed. metal junction box at WH not bonded properly. Missing vacuum breaker on hose bib. There is exposed romex at mini splits and should be single strand conductors/ground in conduit. Casitas not to have a oven/range, and plans not showing one. Hand rail is low, it's below 34". Attic access lid to be drywall, not OSB. Romex not to be in attic access. Missing insulation in attic. Revise plans to match all work on electrical and water heater. Have revised plans when rescheduling.” A multitude of these issues were observed to be incomplete during the compliance inspection. This item remains unresolved.

Governing Rule: A.R.S. § 32-1154(A)(3) - R4-9-108(b) Building Codes.

5. The Registrar then issued a Citation to Respondent, dated December 12, 2023, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b) for failure to perform all work in accordance with any applicable building codes and professional industry standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for March 11, 2024, at 1:00 P.M. At the March 11, 2024, hearing, Complainant Emily Androsky testified on her own behalf; no appearance was made on behalf of Respondent. Daniel Edwards, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted exhibits.

7. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, member, manager, employee, attorney, or any other person. Consequently, Respondent did not present any evidence at the hearing to defend against potential disciplinary action being imposed against its license.

8. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified to a multitude of building code violations cited by the city that had not been corrected by Respondent. He stated some punch list items had been corrected but the project did not receive a final inspection by the city.

9. Complainant Emily Androsky testified that the casita did not pass inspection, and that there were also issues with the garage. She said the project was to have taken six months to complete and it has now taken over two years. She further stated there were other issues such as framing for a 16 foot door rather than a 14 foot door.

10. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on May 21, 2020. The site also reflects two Open cases, no Disciplined cases, and one Resolved/Settled case.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. The copy of the Notice of Hearing that the Registrar sent to Respondent at its address of record was reasonable and Respondent is deemed to have received such notices. A.R.S. §§ 41-1092.4 and 41-1092.05(D).

5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case are Arizona Administrative Code Rule 4-9-108(b) which requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”

7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform all work in accordance with any applicable building codes and professional industry standards, which was not in compliance with Arizona Administrative Code Rule 4-9-108(b). There was no evidence presented to refute the existence of the Directive items.

8. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no dispute that corrective work was not performed and there was no evidence of a valid justification for failing to do so.

9. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Avante Design Build, LLC’s, License Number 328982 is suspended for two (2) days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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)(5), unless Respondent tenders payment of the 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 31, 2024.

/s/ Roger A. Geddes

Administrative Law Judge

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Avante Design Build, LLC

750 N. Robson

Mesa, AZ 85201

[email redacted]

Emily Androsky

9348 W. JJ Ranch Rd.

Phoenix, AZ 85383

[email redacted]

By: OAH Staff