ALJDEC - Licensing
2023A-12715-CHC-ROC · Registrar of Contractors · 2024-10-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Justin Peterson ,
COMPLAINANT
v.
Dell Mar Homes LLC
License No. ROC 235307,
RESPONDENT
No. 2023A-12715-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on September 17, 2024.
APPEARANCES:
For Complainant: Justin Peterson.
For Respondent: Attorney Jason Clark and owner Frank Della Cioppa.
For the Registrar of Contractors: Investigator Gregory Johndrow.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1 to 8. Respondent’s Exhibits 1 through 24.
_____________________________________________________________________
FINDINGS OF FACT
Dell Mar Homes LLC (Respondent) was the holder of License No. 235307 issued by the Arizona Registrar of Contractors (Registrar) on November 2, 2007.
On or about September 15, 2020, Justin Peterson (Complainant) entered into a contract with Respondent for construction of a new home.
On or about April 26, 2021, Pima County approved the grading plan for code compliance. On or about November 6, 2022, a punch list was issued, requiring Respondent to complete “[f]inal grading and drainage away from house on south side of house.” On or about November 18, 2022, Pima County approved the Final Grading.
On November 30, 2022, work stopped on the house. Complainant moved into the home on December 1, 2022.
On or about September 21, 2022, Complainant noticed that water was entering the garage due to rain, and he brought it to Respondent’s attention. Complainant noticed water in the garage again on or around December 4, 2022.
On or about November 4, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Gregory Johndrow, who issued a Jobsite Inspection Notice on November 16, 2023, scheduling the inspection for January 9, 2024.
Investigator Johndrow conducted the jobsite inspection on January 9, 2024, and Respondent was present. Following the inspection, Investigator Johndrow issued a Written Directive From the Registrar to Respondent on January 17, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “The grading on the south side of the property is sloped towards the house/garage. During periods of rain, water will collect against house and enter the garage. Overall grading on the south side of the property along the neighbors property line (who the builder also built at the same time) flows towards my house/garage and adds to the water collection issue. Rain gutters installed by home owner to mitigate issue, but it still happens.”
Investigator’s Observations: Verified. The grading on the south side does not slope away from the residence. Grades should be established to insure proper drainage away from the structure.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 5: “Several scratches in panes that need to be replaced.”
Investigator’s Observations: Verified. Damaged window glass was observed on windows located on the North and West side of the residence.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
The Written Directive required Respondent to notify Investigator Johndrow of Respondent’s compliance with the directive prior to 5:00 p.m. on February 2, 2024.
On February 2, 2024, Respondent requested an extension. Investigator Johndrow granted an extension to February 19, 2024.
On February 20, 2024, Investigator Johndrow issued a Compliance Inspection Notice, setting the inspection for February 28, 2024. During the inspection, Compliance Item 1 was deemed incomplete; although some work had been done, it was not to standard, and it “compromised the required distance of a minimum 4 inches between the weep screed and the earth.” Compliance Item 5 was also deemed incomplete but was scheduled to be fixed on March 1, 2024.
On February 29, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on March 14, 2024. Respondent’s Answer denied the allegations and asserted an affirmative defense that Complainant engaged in neglect, modification, or abnormal use.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On May 31, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for July 12, 2024, at 9:00 AM.
On or about July 9, 2024, Respondent requested that the hearing be continued. The Tribunal granted the continuance to August 12, 2024. On July 17, 2024, the hearing was continued again to September 17, 2024, at 1:00 PM, and that order granting continuance from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.
The hearing was held via Google Meet on September 17, 2024. Justin Peterson testified on his own behalf. Frank Della Cioppa, Frank Della Cioppa, Jr., and Ed Sleeman, testified for Respondent.
Investigator Johndrow testified in support of his observations. He testified that Respondent had done corrective compliance work, but it was not to standard. In correcting the Directive items, Respondent reduced the distance between the weep screed and the earth below workmanship standards.
For the grading, Investigator Johndrow stated that he was speculating about the original work based on his observations at his inspection, and that county inspectors were supposed to inspect for compliance with the relevant code.
Complainant testified that the grading sloped toward that house even before he moved in. He testified that while he dug a trench on the grading and laid concrete on a portion of the graded land, neither change negatively impacted the drainage. He testified that his neighbor built a berm to help with the flooding issue, which changed how the water flowed.
Complainant testified that he believed Respondent failed to follow the grading plans by failing to put the riprap in place. On the plans, the riprap would have been, directly in the center of the space that Complainant wanted to use as a driveway. Mr. Sleeman testified that the riprap was not necessary because the slope was not extreme enough to demand it as a way to secure the dirt.
Frank Della Cioppa and Frank Della Cioppa, Jr., testified that they believe the work was done to code and that Complainant’s activities modified the drainage.
Ed Sleeman was the grading subcontractor on the project. He testified that he graded the property at 2% away from the structure. He testified that grading is fragile when not properly cared for, and he had recommended that Complainant cover the grade with stone, but Complainant refused. Mr. Sleeman also testified that driving on unprotected grading can damage it. He testified that small changes in grading can significantly impact the water flow.
The parties agreed that Compliance Item 5 was corrected.
Administrative notice was taken of Respondent’s prior License record on October 4, 2024. According to that record, Respondent’s License No. 235307 was active. The license had one open complaint and one resolved complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
When a county adopts a code for workmanship standards, the Registrar defers to the county’s standards. Approval by an inspector for a county, city, or other political subdivision establishes a presumption of compliance with the applicable workmanship standards for the stage and scope of work that the inspector approved at the time of inspection.
In correcting work pursuant to a Written Directive From the Registrar, a contractor cannot damage property or create additional workmanship issues. Any damage or new deficiencies in workmanship must be fixed before the directive period ends.
Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or could materially impact the work required to correct the deficiency. Although this is a low threshold, subsequent work that could have no more than a de minimis impact on the issues alleged is not sufficient to establish the affirmative defense.
Pima County has adopted that grading standards provided under the International Residential Code 401.3, which provides as follows:
R401.3 Drainage.
Surface drainage shall be diverted to a storm sewer conveyance or other approved point of collection that does not create a hazard. Lots shall be graded to drain surface water away from foundation walls. The grade shall fall not fewer than 6 inches (152 mm) within the first 10 feet (3048 mm).
Exception: Where lot lines, walls, slopes or other physical barriers prohibit 6 inches (152 mm) of fall within 10 feet (3048 mm), drains or swales shall be constructed to ensure drainage away from the structure. Impervious surfaces within 10 feet (3048 mm) of the building foundation shall be sloped not less than 2 percent away from the building.
The preponderance of the evidence established that the slope of the grading did not meet code. The grading requirement for the portion of the property at issue was “not fewer than 6 inches (152 mm) within the first 10 feet (3048 mm),” which is a minimum of approximately 5% grade (higher if the length is shorter than 10 feet). The record established that a 2% grade was used instead. Failure to meet code would have been a violation of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(B). The record failed to establish that the alleged issues, sloping toward the house and water collecting against the house were due to Respondent.
The preponderance of the evidence established that Complainant engaged in abnormal use of his graded side yard when he used it as a driveway and that he neglected the grading by failing to maintain it while using it as a driveway. The side yard was not created to be a driveway, and it did not have the improvements required to maintain a grade while being used as a driveway. By using the side yard as a driveway, Complainant accepted that such use could damage the grade and that maintaining the grading, in the face of such use, would be his responsibility. In many of the recent photographs, tread indentations were visible on the side yard.
The preponderance of the evidence established that Respondent caused the distance between the weep screed and the earth to be less than four inches in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
Because it is not required to make a determination in this matter, the Tribunal declines to determine whether the trenching and addition of electrical wire was sufficient to meet the modification affirmative defense.
The evidence 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), specifically regarding the distance between the weep screed and the earth.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for one day Respondent’s License No. 235307.
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, October 7, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Justin Peterson
[email redacted]
Jason A. Clark
Megan N. Schandle
Lang Thal King & Hanson PC
[email redacted]
[email redacted]
[email redacted]
Gregory Johndrow
[email redacted]
By: OAH Staff