ALJDEC - Licensing
2023A-12471-CHC-ROC · Registrar of Contractors · 2024-05-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Pamela Decker,
COMPLAINANT
v.
Sundell Design & Construction LLC
License No. ROC 305275,
RESPONDENT
No. 2023A-12471-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 22, 2024
APPEARANCES: Complainant Pamela Decker was represented by William O’Leary who appeared via Google Meet. Registrar of Contractors Investigator Jim Dimond appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE:
_____________________________________________________________________
FINDINGS OF FACT
Sundell Design & Construction LLC. (Respondent) is the holder of License No. 305275 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 1, 2021, Pamela Decker (Complainant) requested to have several issues repaired by the builder of the home, Respondent.
On or about November 27, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Jim Dimond. The jobsite inspection was performed on January 22, 2024.
Investigator Dimond then issued a written directive on or about January 25, 2024, 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 February 14, 2024.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - A portion of the soffit has detached from the eave.
Investigator’s Observation: At the rear of the house on the east side, the soffit is detaching from the truss tails.
This is also beginning to occur at the southeast corner of the home on the southern exposure by the downspout.
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.
Complaint Item: 2 - The screen door was never installed.
Investigator’s Observation: The screen door is not present on the lower front patio slider.
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.
Complaint Item: 3 - The plank flooring on the main, upstairs level of the home has numerous separation points; the subfloor is readily visible through the separation points.
Investigator’s Observation: I did not note any visible subfloor however there are numerous areas that have the butt joints opening up.
Additionally, in the north south run by the island, there is a plank exhibiting chipping on the longitudinal run of the plank.
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.
(All errors contained in the original).
On February 16, 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 February 23, 2024, Respondent e-mailed an Answer to the Registrar, which stated the following:
I am in the process of completing the complaint. I have supplied the screen door, The soffit is repaired. The flooring has just arrived and is scheduled for the last week of Feb. I will have a plumber look at the water heater at the end of Feb. also.
(All errors contained nit he original).
On or about March 6, 2024, a Notice of Hearing was issued setting a hearing on April 22, 2024, at the Office of Administrative Hearings, an independent state agency. The Registrar mailed copies of the Notice of Hearing to the parties at their addresses and email addresses of record.
Also on March 6, 2024, the tribunal issued an Order which informed the parties of the Google Meet information for the hearing. Again, this was sent to both parties’ email addresses of record.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
At hearing, Investigator Dimond testified as to the Registrar’s involvement and the above timeline.
Investigator Dimond testified that Respondent failed to appear at the Jobsite Inspection.
Further, Investigator Dimond testified that on April 18, 2024, he emailed Complainant to determine the status of the work. Investigator Dimond testified that Complainant informed him that all repairs except for the flooring had been completed.
Investigator Dimond, also testified that he believed the time given in the Directive to complete the same was sufficient, and that Respondent never requested an extension.
Complainant too testified that the flooring had not been satisfactorily repaired, and that the screen door was the only item completed.
Administrative notice was taken of Respondent’s prior License record on May 6, 2024. Such prior License record reflected that Respondent’s License No. 305275 was first issued on May 6, 2016, and reflected that there was one 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 soffit on the east side of the house was detaching from the truss tails and the same was beginning on the southeast corner as well; the screen door was never installed; and the plank flooring had numerous areas where butt joints were opening up. 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. Per Complainant’s testimony only the screen door was corrected to her satisfaction. 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. 305275 for a period of three 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, May 6, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
William O’Leary
[email redacted]
Sundell Design & Construction LLC
[email redacted]
By: OAH Staff