ALJDEC - Licensing

2023A-13964-CHC-ROC · Registrar of Contractors · 2024-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janie James-High ,

COMPLAINANT

v.

Pinnacle Builders LLC

License No. ROC 312965,

RESPONDENT

No. 2023A-13964-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 5, 2024

APPEARANCES: Janie James-High appeared on her own behalf. Ben Warner appeared on behalf of Pinnacle Builders LLC.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Pinnacle Builders LLC (Respondent) is the holder of License No. 312965 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 19, 2021, Janie James-High (Complainant) entered into a contract with Respondent for the construction of a single family home.

On or about December 8, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator James Dimond. After a jobsite inspection, Investigator Dimond 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 Thursday, April 25, 2024.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Work has not been done on the house for 3 months. Contractor has not been to the house. Foreman resigned months ago.

Investigator’s Observation: The home appears to be about 80% to 85% done. In the kitchen, most of the cabinets were installed, most of the lighting. There were no appliances and some plumbing remained.

The stairwell is not complete. Stairs are in but the finished treads and risers are not installed. No handrail is present. Wall covering is incomplete.

Powder room needs some minor finish work and plumbing trim out.

Great room has some minor trim out left

Master Bath has minor paint touch ups, plumbing trim out left

Master suite has some trim out left (registers)

Guest bath has paint touch ups left

Walk in closet is 95% complete

Water heater base needs finished.

Landscaping is not complete, no driveway is present

The parties are in dispute regarding issues with change orders and costs however those issues are beyond ROC authority and are better served in an alternative venue.

The respondent is to complete the project in an appropriate manner.

. . . . .

Please direct all questions regarding this Directive to the undersigned Investigator.

All errors contained in original.

Following the issuance of the written directive, the only line items remaining left incomplete from the written directive were the landscaping and driveway. After the deadline in the directive expired, Investigator Dimond was informed by Complainant that most of the items for corrective work had been completed, but the driveway had not been started.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Dimond testified consistently with his report. He further testified that his intention in writing the written directive was for the house to be completed. He stated that, if it was part of the contract and part of the plans, it was supposed to be there. He further testified that he believed a house could not obtain a certificate of occupancy (COO) if the garage was not complete, unless the garage was a detached garage. Investigator Dimond testified that the conditions of the home would have required retaining walls to be a part of the landscaping, and, therefore, part of the written directive.

Complainant testified that there were complete, city-approved plans that included a driveway, retaining walls, and a garage. Complainant further testified that Respondent saw those plans and wrote a contract based on those plans. She further testified that Respondent purchased trusses for the garage as well as a garage door. Complainant testified that Respondent started the excavation for the retaining walls and began the process by excavating for the driveway, though it was “rudimentary” at present. Complainant further testified that she could produce emails and text messages with regard to the driveway, garage and retaining walls.

Jay High testified on behalf of Complaint. Mr. High stated that all of the items discussed were based on the plans that were submitted to the city and approved.

Ben Warner, principle, testified on behalf of Respondent. Mr. Warner testified that he did not believe that the garage was a part of the written directive. He further stated that “everyone missed the garage” when drafting the contract and, therefore, there were subsequent discussions about the garage that were subject to negotiations with the lender. He testified that there was a detached garage on the plans but did not contract for or budget for the garage. He further testified that Respondent would not have been able to start the construction of the garage until the home was finished. Mr. Warner testified that landscaping was not a part of the contract. Mr. Warner further testified that Respondent installed retaining walls for the residence, but not for the landscaping driveway area. With regard to the driveway, Mr. Warner testified that grading was included in the driveway for access. He stated that Complainant wanted a concrete driveway, but that it was not in the budget. Mr. Warner testified that the driveway was cut in part of the grading plans strictly for access so there was a gravel driveway with clear access to the home. He further stated that Respondent needed to have access to get into the construction site so an “easement access” was put in with gravel material for that access and for the sub base for the driveway. Mr. Warner testified that he did see the garage on the plans presented to him, but argued that it was not uncommon for homeowners to typically submit plans to him that required no work on his part, and pointed to landscaping as an example. He admitted that his foreman may have had some conversations with the homeowners, but that the information was “never ran through” him.

Administrative notice is taken of Respondent’s prior License record on August 5, 2024. Such prior License record reflects that Respondent’s License No. 312965 was first issued on April 17, 2017, and is currently active. Such prior License record also reflects that there was this open complaints, 6 prior resolved/settled complaints and 2 prior disciplined cases against Respondent’s license.

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 is such proof as convinces the trier of fact that the contention is more probably true than not.”

Complainant referred to two items, in particular, that were not addressed specifically in the written directive: the garage and the hillside retaining walls. She also addressed the issue of the driveway that was addressed in the written directive. Complainant contended, and Respondent conceded, that Respondent wrote the contract based on the concrete driveway, “retaining walls,” and garage.

Regarding the garage, Complainant testified that there was physical evidence that Respondent intended to build a garage. However, Investigator Dimond was specific in his written directive with regard to the remaining items that needed to be completed. The garage was not specifically indicated in the written directive. Notwithstanding, Investigator Dimond testified that he believed a garage was required in order to obtain a COO and, therefore, was necessarily included in the completion of the home. However, Investigator Dimond further testified that the exception to that would be if the garage was detached. The credible evidence suggests that the garage, had it been built, was to be detached. Therefore, the fact that the garage was omitted from the written directive, and the fact that it was to be detached, and, thus, not required for the issuance of a COO, the evidence established that the garage was not part of this particular written directive, and, therefore, will not be adjudicated accordingly in this decision.

With regard to the “retaining walls,” Investigator Dimond testified that he considered retaining walls a part of the landscaping that he included in the written directive. However, the evidence presented establishes that Respondent was not responsible for the completion of any landscaping on the project. Respondent made a distinction between retaining walls for the home and landscaping retaining walls, and testified that the retaining walls pertaining to the home were completed. Complainant contends that the retaining walls referenced in the contract and associated plans were not landscaping related, and were not built. Because Investigator Dimond only referenced “landscaping” in his written directive, and it is undisputed that landscaping was not a service for which the parties contracted, the written directive is therefore silent on the issue of retaining walls and will not be adjudicated accordingly in this decision.

Finally, with regard to the driveway, Investigator Dimond indicated in his written directive that no driveway was present. There is a discrepancy regarding what type of driveway was required. Respondent testified during cross-examination that it drafted its bid and contract based on a concrete driveway. Notwithstanding, Respondent also testified that it “cut in” the driveway strictly for access so that there is a gravel driveway with clear access to the home with the flat pad area where the garage would eventually go. He further testified that the construction workers needed access to get into the construction site so Respondent created the “easement access” to get in and out, put the gravel material on it that would also be the sub base for the driveway. Complainant established, through testimony, that there was a separate line item in the contract designated for a walkway, driveway, and patio. Although Complainant failed to submit the actual plans that were relied upon by Respondent to formulate its contract, Complainant has established, by a preponderance of the evidence through credible testimony, that Respondent failed to produce a concrete driveway as stated in the contract between the parties. Respondent’s testimony was not credible on this issue. Respondent asks the Tribunal to consider an “easement access” as the driveway for which the parties issued a complete and distinct line item in the contract for, to be the completed driveway. Furthermore, there was no testimony that Respondent, at the original jobsite inspection or any time after seeing the written directive, contested that the “driveway” was not, in fact, complete as per contract. Therefore, the Tribunal deems Respondent’s testimony not the most credible evidence on this issue.

Thus, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards with regard to the driveway. Therefore, Complainant established that Respondent did not complete the project in a 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 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 Ariz. Rev. Stat. § 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. 312965 for a period of 4 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. § 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. § 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, August 26, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff