ALJDEC - Licensing
2023A-11572-CHC-ROC · Registrar of Contractors · 2024-05-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Steve Ruttenberg ,
COMPLAINANT
v.
Pinnacle Builders LLC
License No. ROC 312965,
RESPONDENT
No. 2023A-11572-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 7, 2024, 1:00 P.M.
APPEARANCES: Aaron Peterson, Esq., appeared on behalf of Complainant; Ben Warner, Owner and Managing Member, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos. 1 - 6
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Pinnacle Builders, LLC (“Respondent”), is the holder of License Number 312965 issued by the Registrar of Contractors (“Registrar”).
2. On or about October 23, 2023, Steve Ruttenberg (“Complainant”) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with the construction of a residence in Prescott Valley, Arizona (“project”).
3. The Registrar performed an inspection of the project on October 27, 2023. The Registrar then issued a Written Directive, dated February 13, 2024, requiring Respondent to correct the alleged deficiencies on the project by completing the following items by March 4, 2023, by appropriate means:
Compliance Item 2: Roof not built properly (has leaks, shingles/osb/metal)
Investigator’s Observation: It was not established that the roof leaks and it appears that the roofer has been out and may have addressed that issue.
Respondent is to ensure the roofing installation is water tight.
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: Windows broken, not working.
Investigator’s Observation: A window in the northeast bedroom is cracked at the fixed portion. Several windows are not sliding properly. I cannot determine who or how the window was broken. The respondent is to correct the windows to an operative position in an appropriate 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 6: Patio door will not close.
Investigator’s Observation: The patio slider does not work properly. The respondent indicated that Milgard has a fix for this. The respondent is to correct the condition in an appropriate 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.
4. Upon being informed by Complainant that he had asked Respondent’s lawyer to contact Complainant’s lawyer but that no corrective action was undertaken, the Registrar then issued a Citation to Respondent, dated March 8, 2024, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2)(a) (departure from or disregard of plans or specifications in any material respect that is prejudicial to another;
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar set a hearing for May 7, 2023, at 1:00 P.M. At the hearing, Complainant Steve Ruttenberg testified on his own behalf; Respondent presented the testimony of Ben Warner. The Registrar Investigator (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit Numbers 1 - 6.
6. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that Complainant was performing some of the new construction and that Respondent was performing other aspects of it. He stated it had not been established that the roof leaked and that it had appeared that a roofer had addressed the issue. He further stated Complainant had informed him that Respondent had at some point sent out a roofer and that there had been no subsequent leaks observed since. He further testified he could not determine how the one window pane had become cracked but that other windows were not sliding properly. He further testified that the back patio slider did not properly work and Respondent represented that Milgard had a fix for that. Lastly, he stated the allegation of a violation of A.R.S. § 32-1154(A)(2)(a) had been directed towards an item that had been previously corrected so that it was included in the Citation in error.
7. As herein relevant to the Citation, Complainant testified that he did not know if the roof leaked, but stated that roofers had come out and filled holes with caulking and silicone. He stated he had not heard anything from Respondent since the February 22, 2024, email in which he advised Respondent to have Respondent’s lawyer contact Complainant’s lawyer to make arrangements for corrective action. (Complainant’s Exhibit No. 5).
8. As herein relevant to the Citation, Ben Warner testified on behalf of Respondent that with the exception of the roof, he did not disagree that the Directive items needed to be corrected. He stated no water leak test had been done but that there had been storms with no report of leaks. He also stated that no one knows the cause of the cracked window, but that it was obviously not installed in that condition.
As to the failure to perform corrective action, he said he did not have legal representation when Complainant told him to have his lawyer contact Complainant’s lawyer. He stated he did not personally contact Complainant’s lawyer or the Investigator again regarding corrective work explaining it just “fell through the cracks.”
9. Administrative notice is taken of Respondent’s prior license record. Such record reflects that Respondent’s License No. 312965 was first issued on April 17, 2017, and is renewed through April 30, 2025. Such prior License record also reflects that there were five Open Cases, no Disciplined Cases, and six Resolved/Settled Cases.
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 fall 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 such 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. 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, any of the following acts:
...
2. Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
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.....
5. 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 is Arizona Administrative Code Rule 4-9-108(a) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. A.R.S. § 32-1154(A)(2)(a). Complainant has not presented sufficient evidence to establish that Respondent departed from any plans or specifications. The Investigator testified this had been an earlier issue but had since been corrected and is not mentioned in the Directive. Consequently, the Tribunal finds that Respondent should not be disciplined for an alleged violation of A.R.S. § 32-1154(A)(2)(a).
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of Administrative Code Rule 4-9-108(a) with regard to Complaint Item Nos. 5 and 6, the operation of the windows (but not the broken pane) and sliding glass door. Respondent did not dispute these items or that they needed to be corrected.
Conversely, with regard to Complaint Item No. 2, the Tribunal finds there was insufficient evidence presented to demonstrate that the roofing work was not performed in a professional and workmanlike manner. There was no evidence presented that the roof was leaking and Complainant testified that he did not know if it leaked. Respondent testified that it had had corrective work performed on the roof even before the Directive was issued and even though no water tests were performed, there were no reports of any roof leaks during or after storms.
The Tribunal acknowledges the Investigator directed that Respondent ensure the roofing installation was water tight and that Respondent failed to do this, stating that there was no reason to do this as his roofers had earlier performed roofing work. Nevertheless, the Tribunal considers this direction from the Investigator to be more in the nature of a request for confirmation rather than a direction to correct. Further, as it relates to the potential for disciplinary action, regardless of this direction, it is not Respondent’s burden to show that the roof did not leak or that work in that respect was performed in a professional and workmanlike manner. Consequently, Respondent’s failure to ensure water tightness does not negate or affect Complainant’s burden to show by a preponderance of the evidence that the roofing work was not performed in a professional and workmanlike manner, which Complainant failed to do.
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, and consequently Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(22). There is no dispute that Respondent did not perform corrective action. The evidence reflected that Respondent did make an attempt to contact Complainant to correct the Directive items. Complainant then responded by advising Respondent to have Respondent’s lawyer contact Complainant’s lawyer to make arrangements. However, the evidence further reflected that even though Respondent contended he had no lawyer at the time for this matter, Respondent did not instead personally contact Complainant’s lawyer and also made no further attempts to arrange for corrective work explaining that it ultimately just “fell through the cracks.” The Tribunal does not find such to be a valid justification for failing to perform corrective work.
9. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to establish cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(3) with regard to Complaint Item Nos. 5 and 6 and for a violation of § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Respondent’s License Number 312965 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, May 27, 2024.
/s/ Roger 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]
Mark Home, Esq.
Aaron Peterson, Esq.
4105 N. 20t h St., Suite 220
Phoenix, Arizona 85016
[email redacted]
[email redacted]
Steve Ruttenberg
43337 North Heavenly Way
Anthem, AZ 85086
[email redacted]
Pinnacle Builders, LLC
12875 E. Amble Way
Prescott Valley, AZ 86315
[email redacted]
By: OAH Staff