ALJDEC - Licensing

2023A-12200-CHC-ROC · Registrar of Contractors · 2024-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeremy Fellers,

COMPLAINANT

v.

Jacob Tyler Fallon

DBA: Jacob Fallon

License No. ROC 333525,

RESPONDENT

No. 2023A-12200-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2024

APPEARANCES: Complainant Jeremy Fellers appeared via Google Meet on his own behalf. Respondent Jacob Tyler Fallon appeared in person. Investigator Jack Grimm 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 which were not numbered were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Jacob Tyler Fallon (Respondent) is the holder of License No. 333525 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 23, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to paver installation.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on November 20, 2023.

Investigator Grimm then issued a written directive on or about November 27, 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 29, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Faulty pavers grade in the backyard, grading towards the residence.

Investigators Observation: Pavers at the back porch and up against the house as installed are the same or above the elevation of the home floor. Pavers have no positive slope away from the home and in most location are flat or in some areas have back slope towards the house. Pavers are installed above the stucco weep screed. Per IRC code R703.7.2.1 Weep screeds “The weep screed shall be place not less than 4 inches above earth or 2 inches above paved areas.” The location of the weep screed is set by the bottom of the framed wall and is in the correct location. The paver elevation have buried the weep screed and the soil location of the planter on the east side of the new addition is graded at or above the weep screed. The entire grade around the new addition does not meet the required 4 inches below the weep screed. This condition on the east side of the new addition has caused damage to the lower portion of the interiors of the walls, drywall, base and flooring. The condition of the buried weep screed (paver set to high) is also present around the addition to the garage.

*Correct pavers at all locations to meet the required elevation of 2 inches below stucco weep screed with positive flow to drain away. Correct location of graded soil to meet the requirement of 4 inches below stucco weep screed. The entire new paver patio and soil around the new addition must have positive drainage to a location that will not pool water. Correct/repair all locations of drywall, baseboards and flooring damaged by water intrusion.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #2: Non-disclosure of irrigation leak leading to warping of the baseboards and flooring.

Investigators Observation: Property owner’s state irrigation had to be shut off to this area (planter on east side of new addition) to prevent continued damage to the interior. Baseboards and flooring have been addressed in complaint item #1.

*After the grade issued as outlined in complaint item #1 is addressed correct irrigation as needed.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item #3: Failure to grade the home properly lead to water coming in from the base of the home. Major flood damage to wood flooring and baseboards.

Investigators Observation: Addressed in complaint item #1.

Governing Rule: N/A

Complaint Item #4: Black mold discovered when baseboards removed.

Investigators Observation: The ROC has no jurisdiction over mold and has no way to determine severity if issue.

Governing Rule: N/A

Complaint Item #5: Failure to remove sediment from around the plumbing lead to flooding in the master shower and dirt sediment is still coming from the guest shower.

Investigators Observation: Homeowners state they have resolved this issue.

Governing Rule: N/A.

On January 5, 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), and A.R.S. § 32-1154(A)(22).

On or about January 10, Respondent e-mailed an Answer to the Registrar.

On or about January 30, 2024, a Notice of Hearing was issued setting a hearing on March 14, 2024 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Grimm testified that Respondent failed to appear at the Jobsite Inspection.

Further, Investigator Grimm testified extensively as to the issues contained in items 1 and 2, as the pavers at the back porch were not installed in a way to slope away from the home which caused damage to the home and further, the irrigation system was faulty as well but could only be fixed once the pavers were corrected.

In addition, Investigator Grimm testified that he received an e-mail from Complainant on January 2, 2024, informing him that no corrective work had been performed.

Jeremy Fellers testified on his own behalf. He testified generally that Investigator Grimm thoroughly described the issues which were part of his Complaint.

In addition, Mr. Fellers testified that he did not hear from Respondent until January 8, 2024, but the issue still persists.

Respondent testified that he had a change of business address and took responsibility for not updating the same with the Registrar.

Respondent testified further that he spoke with Investigator Grimm on November 23, 2023, and that Investigator Grimm e-mailed the documents, but because it was an incorrect e-mail, Respondent never received the same. After the information was updated, Respondent testified that he received the documents with about a week left on the Written Directive.

Administrative notice was taken of Respondent’s prior License record on April 2, 2024. Such prior License record reflected that Respondent’s License No. 333525 was first issued on May 28, 2021, and reflected that there was open case, namely the present complaint.

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 pavers had the incorrect slope which led to draining towards the home, and because of this the irrigation system too was incorrect. 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. While the tribunal appreciates Respondent’s accountability for not properly updating his address with the Registrar, by his own admission, Respondent still failed to attempt any corrective work prior to the expiration of the Directive. While he only had a week to perform the same, there was no evidence presented that he requested an extension or even reached out to Complainant prior to the expiration of 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. 333525 for a period of five 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, April 2, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jeremy Fellers

[email redacted]

Jacob Tyler Fallon

[email redacted]

By: OAH Staff