ALJDEC - Licensing

2023A-12495-CHC-ROC · Registrar of Contractors · 2024-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jose Villafana

COMPLAINANT,

v.

Pinnacle Builders LLC

License No. ROC 312965

RESPONDENT.

No. 2023A-12495-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 10, 2024

APPEARANCES: Complainant Jose Villafana (Complainant) represented himself. Ben Warner represented Respondent Pinnacle Builders, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: None.

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent holds license number 312965 issued by the Arizona Registrar of Contractors (Registrar).

2. Ben Warner is the owner of Respondent.

3. Respondent agreed to build a new home for Complainant in the amount of $574,004.00.

4. On or about October 30, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Respondent.

5. On December 12, 2023, Registrar Investigator Jim Dimond conducted an initial job-site inspection.

6. Complainant was present for the job-site inspection. Mr. Warner was not present for the job-site inspection. Investigator Dimond substantiated complaint items 1 through 6 and 8 through 15.

7. On February 2, 2024, the Registrar issued a Directive to Respondent directing Respondent to complete complaints items 1 through 6 and 8 through 16, by appropriate means, no later than February 23, 2024. The Directive provided, in relevant part, as follows:

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

Complaint Item: 1 - Interior drywall repairs need completed

Investigator’s Observation: There is a drywall repair needed in the master closet where the AC piping was addressed. In the laundry room, the box in the ceiling is not trimmed out Drywall on the opposite side of the shower wall will need addressed.

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 - Attic access needs to be cut in

Investigator’s Observation: There is no attic scuttle in the interior of the home. Access in the garage is limited due to fire blocking

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 - Interior trim work needs finished Investigator’s Observation: This is at the box in the ceiling in the laundry room

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: 4 - Guest shower (tiled) leaking into adjacent bedroom

Investigator’s Observation: There is evidence in the adjacent bedroom of water damage on the opposite side of the wall with the shower plumbing in it. The respondent is to ensure that the shower is water tight and correct the corollary damage in the adjacent bedroom 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: 5 - Water damage in bedroom

Investigator’s Observation: As stated, the damage is at the bottom of the wall on the opposite of the shower that has the plumbing in the wall.

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: 6 - Deck needs to be completed Investigator’s Observation: The deck is finished however due to the use of topical fasteners, the manufacturer warranty may have been compromised. The respondent should ensure that the installation meets the manufacturer warranty requirements and if the installation does not, shall make the necessary corrections in order to be warrantable.

Governing Rule: 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.

Complaint Item: 8 - Exterior trim work needs to be completed, wood and door flashings

Investigator’s Observation: Crawl space door is not trimmed out. Dormer windows need trimmed out.

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: 9 - Dormers need to be completed; Investigator’s Observation: Windows are not trimmed out and a batten is missing

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: 10 - Exterior rear lid needs to be repaired and completed, broken T&G boards installed. Needs final stain

Investigator’s Observation: Some split boards were installed, the stain has bled onto the white stucco.

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: 11 - Exterior stucco needed, damage/holes caused by workers and others areas missed by stucco workers

Investigator’s Observation: The gable ends are not sealed. Corners are not sealed at the rafter tails.

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: 12 - House garage needs drywall repairs due to buried boxes and then needs paint final

Investigator’s Observation: Some outlets aren't trimmed out and there is a drywall repair needed at the water heater. 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: 13 - The entire exterior of house needs a paint and stain final

Investigator’s Observation: The house needs a final punch list completed

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: 14 - Crawl space door needs to be trimmed out and painted

Investigator’s Observation: Door is not trimmed out. 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: 15 - RV Garage has been abandoned for many months, work left: Re-do Tyvek paper- wind has ripped off, exterior siding and stone, grinder pump install needs finalized, exterior paint, rain gutters, insulation, drywall and texture, garage doors, interior paint;

Investigator’s Observation: The construction pace is lagging behind on the RV garage. The Tyvek has been repaired but is susceptible to failure again due to wind. Garage was basically a framed shell with drywall installed but not taped or textured. The respondent is to complete the garage 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.

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8. Investigator Dimond contacted Complainant after the expiration of the Directive. Complainant notified Investigator Dimond that Respondent had not corrected the items listed in the Directive. As a result, Investigator Dimond recommended that the case be sent to the Registrar’s legal department for the issuance of a Citation.

9. On February 29, 2024, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code R4-9-108(A).

10. Mr. Warner filed a timely answer to the Citation on behalf of Respondent. Respondent’s written answer provided, in relevant part, as follows:

Respondent Pinnacle Builders, L.L.C. hereby makes its Answer to the Citation dated February 12th , 2024 in this matter. There is good cause why its license should not be suspended or revoked under A.R.S. § 32-1155(A). Pinnacle Builders, LLC responds to the Written Directive requirements by stating that the Complainant required all trades to be scheduled with Complainant and their specific timeframes, which did not permit us to get necessary trades in their accordingly and within the directive time frame. Several items were addressed and repaired. This home also does not have a Certificate of Occupancy as homeowner moved in prior to obtaining which hindered Pinnacles Builders ability to finish said items prior to actual completion of home. Since directive was issued homeowner has also terminated the contract with Pinnacle Builders.

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

12. A hearing was held on May 10, 2024.

13. At hearing, Complainant testified on behalf of himself. Mr. Warner testified on behalf of Respondent. Investigator Dimond provided testimony regarding his investigation and he testified consistently with his job-site inspection notes.

14. Complainant explained that Respondent performed poor work during the construction project. Complainant explained that Respondent’s worker came to his home on only one occasion to make repairs. However, Respondent did not correct any items under the Directive.

15. Mr. Warner is the owner of Respondent. Mr. Warner explained that “to his knowledge”, Respondent was addressing complaint items 1 and 2. Mr. Warner stated that regarding complaint item 3, trim is not required. Regarding complaint item 4,

Mr. Warner stated that the Directive expired before the carpet could be stretched.

Mr. Warner alleged that Complainant approved the topical fasteners. Mr. Warner explained that he sent his workers to repair items 8, 9, 14, and 10. Mr. Warner stated that because Complainant was living in the home, it was difficult to make repairs.

Mr. Warner did not allege that he was present for any repair attempts.

16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 30, 2024. Such prior License record reflects that Respondent’s License No. ROC 312965 was issued on April 17, 2017 and is currently active. Such prior License record shows that there are five open complaints against Respondent’s license. Such prior License record shows that six complaints were resolved or settled by Respondent.

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, 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)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

5. Upon review of the evidence, the Administrative Law Jude concludes that Respondent provided insufficient evidence to establish that it corrected the items listed in the Directive by appropriate means. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 number 312965 held by of Pinnacle Builders LLC for five days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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 30, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jose Villafana

[email redacted]

Pinnacle Builders LLC

[email redacted]

By: OAH Staff