ALJDEC - Licensing

2023A-12723-CHC-ROC · Registrar of Contractors · 2024-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amelia Alvarado,

COMPLAINANT

v.

Fishbone LLC

License No. ROC 339827,

RESPONDENT

No. 2023A-12723-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 11, 2024

APPEARANCES: Complainant Amelia Alvarado appeared on her own behalf. Blaine Nosie, Owner and Qualifying Party, appeared on behalf of Respondent Fishbone LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibit 1 was admitted.

_____________________________________________________________________

FINDINGS OF FACT

Fishbone LLC (Respondent) is the holder of License No. 339827 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 13, 2023, Amelia Alvarado (Complainant) entered into a contract with Respondent for, among other things, the construction of a new garage. The contract stated it would take 30 working days to complete the project, but did not contain an estimated date of completion. The contract also did not have a provision that Complainant could file a complaint with the Registrar.

On or about November 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Miles Crosby. After a jobsite inspection, Investigator Crosby issued a written directive 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 January 20, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Approved plan calls for (4) 6x6 posts; Contractor installed (3) 4x4 posts & failed to include required footings.. The installed 4x4 posts are already leaning, splitting & loose..

Investigator’s Observation: I observed the post to not be according to the plans. Although, the structure is safe, there was no documentation provided to support the change. Without proper documentation this item does not meet standards and should be corrected by appropriate means.

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.

Compliance Item: 2 - The wood beam that holds up porch roof/area appears to be out of code (very concerned about snow load & weather elements in this area.

Investigator’s Observation: I observed the beam to not be according to plans. Without proper documentation, this items does not meet standards and should be corrected by appropriate means.

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.

Compliance Item: 3 - The integrity of the concrete that was poured especially in porch walkway & driveway apron appear to be less than 4” deep in several areas. The concrete is crumbling, chipping away, cracked, missing concrete located beneath areas that require strength & support & appears very weak. Missing break joint in drive way area & (3) missing control joints in porch walkway area.

Investigator’s Observation: I observed there to be no joints in the concrete. The concrete had poor consolidation in multiple areas and overall does not meet standards or plans/specs. This item does not meet standards

and should be corrected by appropriate means.

Governing Rule: Violation of any rule adopted

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Electrical problems located on south wall adjacent to porch area: (2) GFI’s & (1) receptacle inside garage are faulted & stuck; (1) GFI outside in porch area are faulted & stuck (no electricity).

Investigator’s Observation: At the time of inspection the GFCI would not reset indicating there is still and issue. Does not meet standards.

Respondent should correct by appropriate means.

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.

Following the issuance of the written directive, Respondent did not attempt to contact Complainant. After the deadline in the directive expired, Investigator Crosby was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a) and (b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Crosby testified that, despite Complainant’s concerns, the structure was safe, even if it was not built in compliance with the plans, the local building authorities requirements, or the Registrar’s standards.

Raymond Alverado, Complainant’s husband, testified that the posts were not the proper size and could be moved with one hand. Mr. Alverado also noted that the concrete sidewalk was not tied into the structure of the garage. Mr. Alverado stated that the electrical issues still remained and the structure could not be approved by the building inspector until that was resolved.

Mr. Nosie testified that he did not receive the written directive because all communications from the Registrar were sent to the statutory agent. Mr. Nosie acknowledged that the posts were not the size required by the plans and specifications. Mr. Nosie denied there were any issues with the concrete and electrical. Mr. Nosie admitted that there were workmanship issues as identified in the written directive and that he failed to comply with the written directive. Mr. Nosie agreed that Respondent’s contact did not include all of the required elements.

Administrative notice is taken of Respondent’s prior License record on May 1, 2024. Such prior License record reflects that Respondent’s License No. 339827 was first issued on August 1, 2022, and is active. Such prior License record also reflects that there was one other open complaint and no prior complaints against Respondent’s license.

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 evidence established that Respondent did not complete the project in accordance with the plans without Complainant’s consent and the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from and disregarded the plans or applicable building code in violation of A.R.S. § 32-1154(A)(2)(a) and (b).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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. 339827 for a period of three days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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)(5), 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 1, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Fishbone LLC

[email redacted]

Amelia Alvarado

[email redacted]

Miles Crosby

[email redacted]

By: OAH Staff