ALJDEC - Licensing

2023A-13472-CHC-ROC · Registrar of Contractors · 2025-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Virginia Jimenez,

COMPLAINANT

Black Jack Renovations LLC

License No. ROC 339968, 343540. &

348571

RESPONDENT

No. 2023A-13472-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 13, 2025 at 9:00am and March 19, 2025 at 9:00am

APPEARANCES: Complainant Virginia Jimenez on her own behalf. Lawrence Felder, representative on behalf of Respondent Black Jack Renovations LLC; Ryan Oliver, Qualifying Party on behalf of Respondent and Danny Smallwood, Respondent Witness.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Notice of Hearing packet (“Packet”); Respondent Exhibit A.

FINDINGS OF FACT

Black Jack Renovations LLC (“Respondent”) is the holder of License Nos. ROC 339968, 343540, and 348571 issued by the Arizona Registrar of Contractors (“Registrar”).

In June 2023, Virginia Jimenez (“Complainant”) met with Respondent and went over her project. The project consisted of a residential home remodeling project which sat on a two-acre parcel lot located in Cave Creek, Arizona. The work required a permit be obtained from the Town of Cave Creek prior to the start of the work.

On or about July 2023, Complainant entered into a contract with Respondent for the home remodeling project. The contract consisted of an invoice dated July 26, 2023. The total amount of the project was $88,840.00 and Complainant paid Respondent $71,000.00.

Prior to the start of the project, Respondent inquired with Complainant about obtaining a permit for the project. Complainant informed Respondent that she did not want the cost or small government in her business and decided not to obtain a permit. In July 2023, Respondent began work on the project without a permit from the Town of Cave Creek.

From July 2023 through November 23, 2023, Respondent worked steadily on the project.

On or about November 3, 2023, an informal visit by the Registrar was made to Complainant’s property as part of the Registrar’s Building Confidence Program (“Program”) per Complainant’s request. The Program was an informal way for the Registrar to provide recommendations to the parties involved in a particular project.

On November 26, 2023, the Town of Cave Creek came to the jobsite and placed a STOP Order on the project for the lack of a permit. That same day, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. On December 14, 2023, a jobsite inspection was held with both parties present where all parties acknowledged that no further work could be done on the project until necessary permits were obtained.

In December 2023, Complainant took the lead to obtain the permits and met with the Town of Cave Creek. In addition, Complainant began to work with an architect to develop plans regarding the project. Respondent was not invited to participate or provide input in the architect’s plans for the project.

After the jobsite inspection, Investigator Fagerburg issued a Written Directive on January 2, 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 Tuesday, January 23, 2024.

Investigator Notes:

1: On December 1, 2023, during a phone conversation the Complainant informed me that the Town of Cave Creek issued a stop work order on the property until a permit is issued.

2: The Respondent acknowledged performing work requiring a permit and it is noted on the invoice that the Complainant opted out of permitting the work.

3: At this jobsite investigation both parties agree the project was put on hold by the Complainant.

4: In reviewing the invoice submitted by the Respondent I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158(A) Minimum elements of a contract. Specifically #1, #4 and #9.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Concrete: No termite pretreatment

Investigator’s Observation: Verified. The local building authority will determine if a termite pretreatment is required. Prior to continuing the project or performing any corrective work the respondent shall obtain a permit from the Town of Cave Creek Planning and Zoning Department, comply with all requirements and pass all inspections.

. . . .

Complaint Item 2: Concrete: No steel in very shallow footings No steel in slab

. . . .

Complaint Item 3: Concrete: No sealant between existing and new slab

. . . .

Complaint Item 4: Concrete: No backfill or grade completed.

. . . .

Complaint Item 5: Concrete: No stem wall

. . . .

Complaint Item 6: Framing: Walls placed on flat slab allowing water into storage room.

. . . .

Complaint Item 7: Framing: Stairs not all equal height

. . . .

Complaint Item 8: Framing: Some Simpson ties screwed, some nailed.

. . . .

Complaint Item 9: Framing: Bearing beam shimmed on column

. . . .

Complaint Item 11: Framing: Tin in of addition @ different elevations Headers and walls attached to existing stucco

. . . .

Complaint Item 14: Stucco: Stucco around windows overlaps window frames (messy)

. . . .

Complaint Item 15: Stucco: Stucco splatter on slab, tile, stepping stones, landscape stones, patio furniture. (Messy)

. . . .

Complaint Item 16: Stucco: Patches are obvious

. . . .

Complaint Item 19: Stucco: Weep screed missing at scuppers

. . . .

Complaint Item 20: Stucco: Not paint ready

. . . .

Complaint Item 21: Stucco: No pre existing to new cut back and tie in at shed

. . . .

Complaint Item 22: Stucco: No finish at doors

. . . .

Complaint Item 23: Stucco: Humps in repairs new scupper drains over lower window.

. . . .

Complaint Item 26: Electrical: Home run to storage room not back filled

. . . .

Complaint Item 29: Doors: **Security issue** door pops open by itself if dead bolt is not set.

. . . .

Complaint Item 30: Doors: Out of plumb

. . . .

Complaint Item 31: Doors: Doors damaged

. . . .

Complaint Item 32: Doors: No seal or grout installed

. . . .

Complaint Item 33: Plumbing: Deck spigot formed into stucco

. . . .

Complaint Item 34: Plumbing: Condensation line and hot water tank lines were extended and don’t look right.

. . . .

Complaint Item 35: Master shower-No seal/gasket on glass

. . . .

Complaint Item 36: Master shower-No sealant on fixtures

. . . .

Complaint Item 39: General/other professionalism issues: Back tile has defects

. . . .

Complaint Item 43: General/other professionalism issues: Back patio ceiling unsanded

. . . .

Complaint Item 44: General/other professional issues: Sloppy caulking

. . . .

Complaint Item 45: General/other professional issues: Cracks in columns left open and paint incomplete.

. . . .

Complaint Item 46: General/other professionalism issues: Dining window not finished in

. . . .

Complaint Item 47: General/other professionalism issues: Foam inserts at end of metal roofing sheets not installed

. . . .

(*All aforementioned complaint items, except Complaint Item 1, have the same Investigator’s Observation below.)

Investigator’s Observation: Verified. Prior to continuing the project or performing any corrective work the respondent shall obtain a permit from the Town of Cave Creek Planning and Zoning Department, comply with all requirements and pass all inspections.

All errors in original.

From November 26, 2023 to July 16, 2024, no work was performed by Respondent due to lack of permits.

On or about July 18, 2024, the permit was issued by the Town of Cave Creek.

On or about July 23, 2024, Complainant’s complaint was closed due to the issuance of the permit. As such, Respondent could commence work on the project.

From July 23, 2024, to September 24, 2024, emails went back and forth between Complainant and Respondent regarding how to move forward with the project.

On September 3, 2024, Complainant sent an email to Respondent which stated in part, “I will need a copy of your insurance certificate acknowledging the points of coverage for vehicle, worker’s compensation, and liability before any work is done.” In response, Respondent stated, “yes agreed. i [sic] am required to carry that. I am not required to prove it to you per the roc. respectfully. [sic] having active licenses prove I have active insurance, let me know if you refuse us access to your property. otherwise [sic] we will be there as planned tomorrow. thank [sic] you.” Later that day, Complainant responded, “Licensed contractors are required to have specific insurance by AROC/law. Until your insurance certificate is provided no work will be permitted on my property for liability reasons.”

On or about September 25, 2024, the complaint was reopened by Complainant through the Registrar.

On September 30, 2024, Investigator Fagerburg issued a second Written Directive to Respondent that provided as follows:

Investigator Note:

1: On July 17, 2024 a permit was issued by the Town of Cave Creek Planning and Zoning Department for the project. Since that time there has been no corrective work performed by the respondent. The respondent shall complete the remaining written directive requirements by appropriate means.

DIRECTIVE REQUIREMENTS

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

(*All complaint items are the same as the Written Directive issued on January 2, 2024.)

Following the issuance of the September 30, 2024, Written Directive, Respondent wanted to complete Complaint Items 3 – 4, 7, 14 – 16, 19 – 20, 22 – 23, 26, 29 – 30, 32 – 33, 36, 39, and 43 – 47, but was unable to gain access to the property unless “patio work/walk deck” items, which were in dispute, were prioritized per Complainant. After the deadline in the directive expired, Investigator Fagerburg was notified that no corrective work had been performed.

On October 24, 2024, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

Hearing Evidence

Complainant testified on her own behalf. Respondent was represented by Attorney Lawrence Felder and presented the testimony of Ryan Oliver and Danny Smallwood. The Registrar was represented by Investigator Fagerburg. Administrative notice was taken of the Registrar’s electronic file and Notice of Hearing. The substantive evidence of record is as follows:

Permit. Respondent decided to move forward without a permit in hand prior to starting work on this project. Mr. Oliver, Qualifying Party, admitted that he should have obtained the permits and not relied on Complainant’s refusal to acquire them. Mr. Oliver testified, “In the end, the buck stops with the contractor, I take responsibility,” regarding not having obtained a permit prior to Respondent began work.

Walk Deck. The walk deck was a deck off the second floor that needed to be redone. This item was not included in the original contract. In part, what was listed in the original invoice included a (i) rear patio extension 20’x10’ includes tin roof, 3”x8” rafters and 3 posts also needed concrete and (ii) existing rear patio replace existing rotten posts and guard rail on top. Investigator Fagerburg testified that the rear patio extension “doesn’t mean it is a walk deck on the second level,” and “really didn’t correlate the fact that the extension of the rear patio was not part of a walk deck which may have been an oversight on my behalf.” The walk deck was in dispute and Mr. Oliver testified that Respondent would fix many of the other complaint items, however, Complainant wanted the walk deck and patio to take priority, in order for Respondent to come back to the property to finish the work.

Third-Party Contractor. Mr. Oliver argued that Complainant hired a third-party contractor, Respondent’s framers, that performed work on the rear patio deck which should have a tin roof, which was in Respondent’s contracted scope of work. However, the rear patio deck, turned into a rear patio and second level walk out deck, which was not in Respondent’s contracted scope of work. Complainant admitted that she hired Respondent’s framers and paid them, in a separate agreement. Neither Respondent’s invoices 1009 or 1010 pertain to an add-on walk deck. Although the walk deck is a part of the architect’s plans, Mr. Oliver testified that Respondent is not responsible for complaint items 8, 9 and 11 due to uncontracted modifications performed by a third-party.

Denial of Access. Investigator Fagerburg recalled having received and reviewed emails and text threads between Complainant and Mr. Oliver but did not recall any denial of access issue. Complainant testified that she did not deny access to Respondent to perform work on the project. Mr. Oliver testified that Respondent was ready to go back to work after the permit was issued but Complainant put unreasonable demands on them and could not come back to the property because of these demands. The demands included that Complainant required she be added as an additional insured on Respondent’s Certificate of Insurance (“COI”) and for Mr. Oliver to provide these COI documents to Complainant before work commenced. In addition, Mr. Oliver further testified that Complainant would not allow Respondent to come back to the property prior to the October 17, 2024 deadline because she wanted the walk deck and patio to take priority which were complaint items in dispute.

Administrative notice is taken of Respondent’s prior License record on March 19, 2025. Such prior License record reflects that Respondent’s License No. ROC 339968 was first issued on August 8, 2022, and was Active with no prior discipline. Such prior License record reflects that Respondent’s License No. ROC 343540 was first issued on March 3, 2023, and was suspended due to bond cancellation with no prior discipline. Such prior License record reflects that Respondent’s License No. ROC 348571 was first issued on November 8, 2023, and was Active with no prior discipline.

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. A preponderance of the evidence means “proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

In this case, the time period from July 23, 2024, through September 24, 2024, there was no active complaint with the Registrar. Hence, the Registrar did not have jurisdiction over this time period and any denial of access arguments by Respondent were not considered.

In regards to violation of Charge 1 in the Citation which cites Ariz. Rev. Stat. § 32-1154(A)(2)(b), a departure or disregard of applicable building code which pertains to the lack of a permit, the evidence established that this Charge should not have been included in the September 30, 2024 Written Directive. Due to the issuance of a permit, which was prior to the second Written Directive, Investigator Fagerburg testified that all of the language in his Investigator’s Observation which stated, “Prior to continuing the project or performing any corrective work the respondent shall obtain a permit from the Town of Cave Creek Planning and Zoning Department, comply with all requirements, pass all inspections and complete the project per contract,” should have been removed and not a part of this Written Directive. While a lack of permit would constitute a violation, at the time, it has since been remedied by the issuance of the permit for the project prior to reopening the complaint in September 2024.

The evidence established that some of Respondent’s work was not in conformity with the Registrar’s standards. However, per the September 30, 2024, Written Directive, Respondent requested to complete Complaint Items 3 – 4, 7, 14 – 16, 19 – 20, 22 – 23, 26, 29 – 30, 32 – 33, 36, 39, and 43 – 47, prior to the October 17, 2024 deadline. Respondent was unable to complete these items. Respondent asserted the defense, denial of access, and has met its burden and shown by a preponderance of the evidence that there was a denial of access. In fact, during the Directive period, a property owner must provide reasonable access to allow the contractor to fix their work as directed by the Registrar in a written directive. Property owners may not put any additional, unnecessary restrictions on contractors above and beyond the initial contract requirements agreed upon at the beginning of the project. Property owners must make access available to contractors to make the required repairs and failure to provide reasonable access may result in the Registrar dismissing the complaint. The Registrar neither expects nor demands perfection of its licensees. While the job may have been incomplete at the time of the jobsite inspection, the deadline in the written directive was issued to allow Respondent an opportunity to complete the job and correct any workmanship issues. Complainant’s failure to allow access to the property precludes a finding of a workmanship violation. Therefore, Complainant failed to establish that Respondent’s work was not in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12). However, the Tribunal has taken note that Respondent provided a contract that they have utilized and it comports to Ariz. Rev. Stat. § 32-1158.

As discussed previously, Complainant’s denial of access to the property during the time period provided in the Written Directive constituted an affirmative defense. Therefore, Complainant failed to establish that Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2023A-13472 against Respondent’ License Nos. 339968, 343540, and 348571 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, April 8, 2025.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Black Jack Renovations LLC

5955 W Peoria Ave

Glendale, AZ 85312

[email redacted]

David Fagerburg

[email redacted]

Lawrence J. Felder

Resolvere Law PLLC

3101 N. Central Avenue, Suite 850

Phoenix, Arizona 85012

[email redacted]

Virginia Jimenez

40834 N 26th St

Cave Creek, AZ 85331

[email redacted]

By: OAH Staff