ALJDEC - Licensing

2023A-11827-CHC-ROC · Registrar of Contractors · 2024-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Victoria Lynnette Adam

COMPLAINANT,

Whetstone Construction LLC

License No. ROC 180592,

RESPONDENT.

No. 2023A-11827-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 5, 2024

APPEARANCES: Ryan Bailey, Esq. represented Victoria Lynnette Adam (Complainant). Dale Dickamore represented Whetstone Construction, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 and 9 through 11.

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent holds license number 180592 issued by the Arizona Registrar of Contractors (Registrar). Dale Dickamore owns Respondent.

2. On or about December 30, 2022, Complainant and Respondent entered into a residential repair construction contract.

3. Respondent did not provide Complainant with a contract that included the estimated date of completion of the work, a description of the work to be performed under the contract, and information about Complainant’s right to file a complaint with the Registrar for alleged violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A). See the Registrar’s administrative record, pg. 93.

4. On or about January 18, 2023, Respondent started work.

5. On or about March 18, 2023, Respondent stopped work.

6. On October 11, 2023, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent, in connection with a construction contract.

7. On October 12, 2023, the Registrar assigned the complaint to one of its investigators, Michael Springer (Investigator Springer).

8. Complainant subsequently filed an addendum to the complaint.

9. On May 7, 2024, Investigator Springer conducted an initial job-site inspection. At the job-site inspection, Investigator Springer discovered that Respondent performed poor work in connection with many items listed in the complaint. Investigator Springer listed the deficient items in his job-site inspection notes. See the Registrar’s administrative record, pgs. 63-68.

10. On May 10, 2024, the Registrar issued a Directive to Respondent that directed Respondent to correct compliance items 2, 3, 5, 6, 16, 19, 23, 25, 27, 28, 30-33, 36, 38, 39, 44, 46, 53, 54, 59, and 62, by appropriate means, no later than May 28, 2024. See the Registrar’s administrative record, pgs. 45-54.

11. On June 28, 2024, Investigator Springer conducted a job-site compliance inspection. Investigator Springer discovered that Respondent had appropriately repaired the items listed in the Directive, with the exception of compliance items 16, 19, 30, 32, 38, 46, and 54. Investigator Springer’s notes regarding his compliance inspection provided, in relevant part, as follows:

Compliance Item: 16 - Replacement support beam under deck was cut wrong, installed wrong, and missing support brackets

Investigator’s Observation: Rafter attached to existing rafter for support is supported but is missing 1 H2.5 connector.

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 - retaining wall- No weep holes and there is no evidence of water proofing to prevent excess moisture infiltration

Investigator’s Observation: No plans were provided for retaining wall. Nothing in contract states weep holes or moisture blocking. Blocking at South end is poorly finished with block laying in the dirt. Dirt is not being held back and is eroding around wall.

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: 30 - masonry wall at corner of pool house has been stained by concrete wash from section of walkway thats been removed

Investigator’s Observation: Concrete staining is evident on masonry wall where sidewalk was removed.

Compliance Item: 32 - One or more downspouts were damaged pulled away from the corner of the house walkway area. Covered in cement splatter.

Investigator’s Observation: Cement splatter on downspout near where sidewalk was removed.

Compliance Item: 38 - The pool door enclosure does not close and latch properly

Investigator’s Observation: Latch for pool enclosure is inoperable.

Compliance Item: 46 - The deck support beams have been painted in a substandard manner with mismatched missing or incomplete paint

Investigator’s Observation: Touch up paint does not match. Overspray from railing is on deck supports.

Compliance Item: 54 - The finished ceiling in the carport area was water damaged. Workmanship unacceptable

Investigator’s Observation: Work was done around the two skylights in the carport. painting and texture is poor and failing.

12. On July 1, 2024, the Registrar issued a Citation against Respondent’s license, alleging that Respondent violated A.R.S. §§ 32-1154 (A)(3),(12), and (22);

A.R.S. § 32-1158 and Arizona Administrative Code (A.A,C,) R4-9-108(A).

13. Respondent filed a timely answer to the Citation.

14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

15. A hearing was held on November 5, 2024.

16. At hearing, Complainant testified on behalf of herself and presented the testimony of Eric Almquist. Investigator Springer testified consistently with the May 10, 2024 Directive and his compliance job-site inspection notes. Mr. Dickamore testified on behalf of Respondent.

17. Complainant explained that Respondent performed poor work in connection with the construction contract.

18. Mr. Dickamore stated that Respondent repaired the latch, but Respondent is willing to repair it. Mr. Dickamore also stated that Respondent repainted the entire ceiling but missed a couple of spots; Mr. Dickamore stated that Respondent is willing to correct this problem.

19. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on November 12, 2024, Respondent’s license was first issued on January 24, 2003, and is active. Such prior License record also shows that there is only one open complaint against Respondent. Respondent’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in the imposition of discipline and a civil penalty.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).

4. The undisputed evidence established that Respondent’s contract did not include an estimated completion date, a description of the work to be informed, nor a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A), which is a violation of A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1158.

5. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a 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 License No. 180592 issued to Whetstone Construction, LLC, for two days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, November 12, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Ryan D. Bailey, Esq.

Stone Canyon Law

[email redacted]

Whetstone Construction LLC

[email redacted]

Victoria Lynnette Adam

[email redacted]

By: OAH Staff