ALJDEC - Licensing 2023A-12421-CHC-ROC
2023A-12421-CHC-ROC · Registrar of Contractors · 2024-08-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Joe A DeNoble ,
COMPLAINANT
v.
Fairway Constructors Inc
License No. ROC 090937,
RESPONDENT
No. 2023A-12421-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 3, 2024 and July 17, 2024
APPEARANCES: Joe A. DeNoble (Complainant) represented himself.
Dan Oehler, Esq. represented Fairway Constructors, Inc. (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Fairway Exhibits 18, 21, 22, 28, 29, 30, 43-48, 49, P- 6 and P-9, 45, 46, P31 and P32 of Investigator Corlett’s Photographs from the Administrative Record of the Arizona Registrar of Contractors (Registrar or ROC).
_____________________________________________________________________
FINDINGS OF FACT
On May 24, 2024, the Registrar of Contractors, (Registrar or ROC),
issued a Notice of Hearing setting the above-captioned matter for hearing on July 3, 2024, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
2. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. § 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(22).
3. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
4. A hearing was held on July 3, 2024 and July 17, 2024.
5. At hearing, Complainant testified on behalf of himself and presented the testimony of Stony Hazelwood. Amir Mehdi Azarmi, Respondent’s qualifying party, and Erick Chee testified on behalf of Respondent. Justin Huseman, the owner of Justin Time Tile & Design LLC (Justin Time), testified on behalf of himself and Respondent.
6. On or about April 19, 2022, Respondent agreed to build a RV garage and “man cave” for Complainant for the amount of $407,805. Complainant paid Respondent $325,000 for the work.
7. In or around May of 2022, Respondent started work on the project.
8. On September 21, 2023, Respondent stopped work.
9. On November 2, 2023, the Registrar received a complaint from Complainant alleging poor work on the part of Respondent.
10. On January 9, 2024, the registrar’s investigator, Cliff Corlett, conducted an initial job-site inspection. Investigator Corlett discovered that Respondent performed poor work in connection with complaint items 2-2, 4-4, 5-5, 6-6, 8-8, 9-9, 9a, 10-10, 10-10a, 10-10b, 11-11, 12-12, 13-13, 15-15a, 15-15b, 15-15d, 16-16e, 17-17c, 17-17d, 17-17e, and 17-17f.
11. On January 26, 2024, the Registrar issued a Directive to Respondent requiring the correction of complaint items 2-2, 4-4, 5-5, 6-6, 8-8, 9-9, 9a, 10-10, 10-10a, 10-10b, 11-11, 12-12, 13-13, 15-15a, 15-15b, 15-15d, 16-16e, 17-17c, 17-17d, 17-17e, and 17-17f, by appropriate means, no later than 5:00 p.m. on February 23, 2024.
12. Regarding complaint items 15-15a, the Directive provided, in relevant part, as follows:
....................................................
Compliance Item: 15 - OBSERVATION DECK: 15 a. Tile poorly installed,
Investigator’s Observation: Uneven Floor tile on upper deck. Investigator’s Observation: "GENERAL STATEMENT FROM WORKMANSIP STANDARDS FOR LICENSED CONTRACTORS" (WSLC) **CERAMIC AND NATURAL STONE FLOOR TILE
** When an inadequate or defective substrate is present prior to installation of tile the general contractor and/or the owner should be notified in writing by the tile contractor, that a specific surface area is unacceptable for installation. Uneven or wavy floors. Floors should not vary from flat more than 1/4" over a 10' area provided the deviation is gradual. Deviations, dips, or sags over short distances and easily visible to the eye may be considered unacceptable. Contractor should make necessary repairs.
Uneven tile. (Lippage) Inherent characteristics of the tile dictate the method of installation. All unusual characteristics of the tile should be explained to the owner or the owner’s agent prior to installation. Lippage of all manufactured tiles are to be no greater than 1/32" between individual tiles Contractor should make necessary repairs.
Grout missing in some areas: Investigator’s Observation: Tile grout installation should be uniform in installation. There were areas noted to have varying depths of grout. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS, MATCHING SURROUNDING AREAS AS CLOSELY AS POSSIBLE.
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.
....................................................
Errors in original.
13. On February 21, 2024, the Registrar extended the deadline for compliance under the Directive was extended to March 6, 2024.
14. On March 8, 2024, Complainant notified Investigator Corlett that the work was incomplete and not satisfactory.
15. On March 18, 2024, Investigator Corlett conducted a job-site compliance inspection. Investigator Corlett discovered that Respondent had correctly repaired the complaint items in the Directive, with the exception of complaint items 5, 6, 9, 10, 11, 12, and 15-15a.
16. Respondent filed a timely answer to the Citation.
17. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
18. At hearing, Investigator Corlett testified consistently with his job-site and compliance inspection notes.
19. Complainant explained that Respondent performed poor work in connection with the RV garage and “man cave” construction project. During the time period for compliance under the Directive, after Complainant received an email from Respondent regarding the corrective work that would be performed at his property, Complainant gave the email to Mr. Hazelwood.
20. Mr. Hazelwood is a friend of Complainant. Mr. Hazelwood explained that he and Complainant communicated with Mr. Huseman at the beginning of the construction project. Mr. Hazelwood stated that he was involved in the project before the filing of the complaint to help ensure that the project was completed. Mr. Hazelwood stated that after the Directive was issued, he was present on the first day when Respondent came to do a walk through and the first day that the tile repair began. After that time, Mr. Hazelwood was present during the early morning of every day and in the evening to review the work that was completed. Mr. Hazelwood checked to make sure that workers checked in and out. Mr. Hazelwood told Mr. Huseman that if he needed more time to work, he must submit the request at least 24 hours in advance.
Mr. Hazelwood explained that he was present for both inspections with the Registrar.
21. Mr. Hazelwood stated that no one asked him to remove the handrails on the deck. When asked on cross examination whether he was in Arizona in charge of the project when Complainant was not present, Mr. Hazelwood denied that he was in charge of the project. Mr. Hazelwood stated that he reported back to Complainant that occurred in connection with the project. Mr. Hazelwood stated that he renounced anything “to do” with the project. Mr. Hazelwood stated that he told Respondent that he would no longer be helping them and everything “had to go through” Complainant.
22. Justin Huseman is the owner of Justin Time. Respondent hired Justin Time as a subcontractor to perform the tile work for the project. Mr. Huseman stated at hearing that he asked Mr. Hazelwood if he would remove the handrails to repair the tile. Mr. Huseman stated that Mr. Hazelwood responded, “absolutely not.” Mr. Huseman stated that Mr. Hazelwood managed the entire project. Mr. Hazelwood made sure that the workers signed in and out. Mr. Huseman directed all questions to Mr. Hazelwood because Complainant was never present. Mr. Huseman stated that Mr. Hazelwood was his direct contact for the project. Mr. Huseman inquired with Investigator Corlett if he could force the homeowner to remove the handrails and Investigator Corlett responded, “no.” Mr. Huseman stated that Mr. Hazelwood told him that if he remained at the property after 2:00 p.m., Mr. Hazelwood would shut the door “on him.” Mr. Huseman testified that it would have taken him 16 hours to complete the tile work. Mr. Huseman explained that he would have needed to remove the handrails to properly correct the tile. Mr. Huseman testified to the effect that he was unable to make the repairs to the tile because Complainant did not allow him to correct the problem in the manner that he believed to be appropriate. I find Mr. Huseman’s testimony to be credible.
23. Mr. Azarmi testified to the effect that Mr. Hazelwood was the manager for the project. Mr. Azarmi denied that Respondent performed work. Mr. Arzarmi stated that Respondent was not given sufficient time to make the repairs listed in the Directive.
24. Erick Chee was hired by Respondent to perform corrective work under the directive. Mr. Chee explained that Mr. Hazelwood provided him with directives regarding the work.
25. Upon review of the evidence presented at hearing, the Administrative Law Judge concludes that Mr. Hazelwood managed the project on behalf of Complainant. Furthermore, the evidence shows that Complainant did now allow Justin Time, Respondent’s subcontractor, to remove the handrails to correct the tile work.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. The preponderance of the evidence shows that Respondent failed to perform the work in compliance with professional industry standards in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to
correct complaint items 5, 6, 9, 10, 11, 12 listed in the Registrar’s Directive, without valid justification, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(22).
7. The preponderance of the evidence shows that Complainant did now allow Respondent to correct complaint item 15-15a in the manner that Respondent deemed to be appropriate. Therefore, the Administrative Law Judge concludes that Complainant has denied Respondent reasonable access to repair complaint item 15-15a.
8. Regarding complaint item 15-15a, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108(A), and 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 ROC License: No. 090937 held by Fairway Constructors Inc
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 Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 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, August 6, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Fairway Constructors Inc.
[email redacted]
Daniel J. Oehler, Esq.
[email redacted]
Joe A DeNoble
[email redacted]
By: OAH Staff