ALJDEC - Licensing

2023A-14174-CHC-ROC · Registrar of Contractors · 2024-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christopher James Baldwin,

COMPLAINANT

C&J Renovations LLC

DBA: HDK Landscape & Design

License No. ROC 324811,

RESPONDENT

No. 2023A-14174-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 27, 2024

APPEARANCES: Christopher Baldwin appeared on his own behalf. James and Carie Kahn appeared on behalf of C&J Renovations 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

C&J Renovations LLC (Respondent) is the holder of License No. 324811 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 19, 2023 Christopher Baldwin (Complainant) entered into a contract with Respondent for, among other things, a backyard renovation.

On or about December 13, 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 Mark Nipp. After a jobsite inspection (JSI), Investigator Nipp 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 Tuesday, February 27, 2024.

RESTRICTIONS

 You may not perform or hire other contractors to perform work that is outside the scope of your license.

 If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item #3: Auto-fill feature defective.

Investigator’s Observation: Verified

I inspected the auto-fill mechanism and noted that it appears to function as designed. However, the auto-fill is plumbed in a way that it is loose and directly under the water flow. When the water impacts the auto-fill it forces the device in a position that makes it constantly add water.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 2-3

. . . . .

Compliance Item #4: Pipes were accidentally "drilled" too high, resulting in visibly seen.

Investigator’s Observation: Verified

Both parties agreed that the 2.5” waterfall supply line (PVC) was placed in a position that makes it visible under the rocks. The Respondent stated that he didn’t have a plumbing plan and had to do some make some decisions in the moment. The Respondent stated that in hindsight, he could have routed the line differently to keep it from being visible. The Respondent also stated that he would not be happy with the line being visible if this were at his own home. I saw that the supply line was visible under the rocks. There is a reasonable expectation that the Respondent, being a licensed contractor, should understand that the supply line should not be visible.

Reference Picture(s) 2-3

. . . . .

Compliance Item #5: Missing River Rock.

Investigator’s Observation: Verified

Both parties agreed that the fountain is missing river rock and that the Respondent was to provide it. I saw that only half of the fountain had river rock installed. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 2

. . . . .

Compliance Item #7: Plumbing not secure on backside.

Investigator’s Observation: Verified

Both parties agreed that the plumbing on the back of the fountain is loose and should be secured. I saw that the plumbing behind the fountain was not secured and noted there was significant movement which could lead to premature failure.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner. Reference Picture(s) 4

. . . . .

Compliance Item #8: Not painted.

Investigator’s Observation: Verified

Both parties agreed that they had a verbal agreement that the Respondent would paint the rear of the fountain structure because it was visible from the street. I saw that the back of the fountain was not painted. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 4

. . . . .

Compliance Item #9: Electrical not secure.

Investigator’s Observation: Verified

Both parties agreed that the low voltage electrical wires were not secured and that they should be. Both parties agreed that there was a void behind the 120v outlet box (P6) that should be appropriately filled. The Respondent explained that he removed the pre-existing outlet and installed a box extender so he could add a new electrical circuit to power the fountain. When asked he obtained a building permit to add the electrical circuit, the Respondent stated he did not. The Respondent holds an ROC license, CR-21 – Hardscaping and is permitted to connect 1210v circuits for this purpose. However, International Residential Code (IRC) Section 105.1 that a contractor must obtain a building permit prior to beginning work requiring one. IRC Section 105.2 describes that work which is exempt from a building permit. I reviewed IRC Section 105.2 and noted that adding an electrical circuit is not exempt and a building permit is required. Reference Picture(s) 5-6

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

. . . . .

Compliance Item #10: Touch up grout joints and seal tile.

Investigator’s Observation: Verified

Both parties agreed that there were several pavers that had settled and required releveling. Additionally, the Respondent was initially short six (6) pavers and used non-matching pavers as a temporary measure. Both parties agreed parties also agreed that the contract called for lippage no greater than 1/16 inch. I saw there were six (6) non-matching pavers that had no polymeric sand applied. I also saw there were 3-4 locations where the pavers had lippage exceeding 1/16 inch (agreed upon in the contract). The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 7-10

. . . . .

Compliance Item #11: Incomplete BBQ. Per SW Gas, connections and plumbing is not to code. No shutoff valve and wrong fittings applied. (Combined with Compliance Item #12-13)

Investigator’s Observation: Verified

Both parties agreed the Respondent completed the work on the gas line for the BBQ and Fireplace without a permit. To date, no permit has been obtained. The Complainant pointed out several items of concern related to the natural gas plumbing installation. I inspected those items and made the following observations: (a). The gas line has been disconnected. (Per the Complainant it was disconnected by Southwest Gas because it did not meet code). (b). There is no shut off valve on the BBQ gas connection. Respondent – Out of Scope of ROC License:

I researched the Respondent’s ROC license and noted that he holds a CR-21 Hardscape and Irrigation Systems. The license scope for CR-21 states, “Free standing fire pits, fireplaces, or barbeques - electric, plumbing, and gas must be subcontracted to a properly licensed contractor”

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 11-13

. . . . .

Compliance Item #14: Interior needs to be leveled with pavers.

Investigator’s Observation: Verified

Both parties agreed the Respondent was supposed to level the floor of the BBQ island and install pavers. I saw that the BBQ floor was not leveled and there were no pavers installed. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 14-15

. . . . .

Compliance Item #17: Missing cabinet hardware.

Investigator’s Observation: Verified

I saw the BBQ island doors did not have any hardware. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 15-16

. . . . .

Compliance Item #19: Incomplete Fireplace.

Investigator’s Observation: Verified

The Complainant explained that the valve box was incomplete, it was missing grout on the fireplace vent, and there was no shut off valve. Both parties agreed that the fireplace was incomplete. I saw that the valve box was incomplete, it was missing grout on the fireplace vent, and there was no shut off valve. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 18-23

. . . . .

Compliance Item #28: Borders not adequately secured.

Investigator’s Observation: Verified

I saw there were 5-6 loose edge pavers. ROC Workmanship Standards for Licensed Contractors (June 2009) states, failed or loose edge restraints are not acceptable. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 25-26

. . . . .

Compliance Item #30: Chipped/damaged tiles due to GC dropping tools/rework.

Investigator’s Observation: Verified

I saw there were four pavers that had readily visible chips on the edges, indicating they had been damaged prior to or during installation. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 27-30

. . . . .

Compliance Item #37: Incomplete landscaping, Plants and Turf - refuses to complete project.

Investigator’s Observation: Verified

The Complainant explained that the turf and cactus had not been installed.

I saw the turf and additional cactus had not been installed. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 31-33

. . . . .

Compliance Item #38: No installation of lighting per contract.

Investigator’s Observation: Verified

The parties disagreed on who was responsible for connecting the landscape

lighting. I saw that there were no connected landscape lights. I reviewed the contract and noted that, in an undated contract addendum (Cbaldwin_HDK Contract Addendum.pdf), the third bullet point indicates that the Complainant will provide the lighting and the Respondent will connect it. The contract addendum appears to be signed by both parties. The respondent should correct by appropriate means, pursuant to the contract,

applicable building codes, and within the scope of their license. Reference Picture(s) 31-33

. . . . .

Compliance Item #42: Incomplete Irrigation - no installation of drip lines to

plants, per contract.

Investigator’s Observation: Verified

I saw that the 1⁄2 inch poly irrigation tubing had been installed; however, there were no drip lines installed. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 34-35

. . . . .

Compliance Item #44: A/V incomplete. 1 outdoor Bose Speaker needs to be installed/tested.

Investigator’s Observation: Verified

I saw that one outdoor speaker did not have wires connected, although the wire was connected. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 38-39

. . . . .

Compliance Item #45: Cinder Block Wall - source matched red brick, install and mortar.

Investigator’s Observation: Verified

Both parties agreed that the new CMU wall sections had not been capped and that the Respondent was responsible to complete this item. I saw the new CMU wall sections were uncapped. The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. Reference Picture(s) 40-41

Following the issuance of the written directive, a compliance JSI was conducted on April 11, 2024. At the compliance JSI, Investigator Nipp noted that 9 of the original 18 directive items were corrected and nine items remained uncorrected in accordance with the written directive.

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) and (B); Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Nipp testified consistently with his written directive and JSI observations. Investigator Nipp additionally testified that he granted two extensions to the written directive deadline at Respondent’s request. He further testified that attempts to correct Complaint Items 3, 9, 10, 14, 28 and 44 were made, but the corrections did not meet the minimum workmanship standards. No attempts were made to correct Complaint items 11 and 30.

Complainant testified that Respondent started work on September 11, 2023. He provided Respondent with a 3D rendering of what the final look and feel of the completed work should look like. Complainant further testified that in December 2023, his neighborhood had a leak and Southwest Gas came into his backyard and advised him of a variety of items that were not constructed to code. Complainant testified that a plumber had originally hooked up the gas line, but that Respondent then disassembled it and never re-attached it. He further testified that Respondent then stopped showing up to work, at which point he filed the Complaint.

James Kahn, co-owner, testified on behalf of Respondent. Mr. Kahn testified that he started the project early and subsequently ran into issues with regard to staffing, material issues, and material selection. Mr. Kahn maintained that the gas line was connected by a third party plumber and that all Respondent did was put the sleeves and pipes in the ground. He further testified that he tried to contact Complainant regarding the speaker issue “dozens and hundreds of times with no response.” Lastly, Mr. Kahn testified that he was under the impression that he had until the compliance JSI on April 11, 2024 to complete the written directive and that Respondent was denied access in the month of April, but never prior to March 29, 2024.

Carie Kahn, co-owner, testified on behalf of Respondent. Mrs. Kahn testified that she was present when she saw the plumbers hook up the gas line to the house.

Administrative notice is taken of Respondent’s prior License record on June 27, 2024. Such prior License record reflects that Respondent’s License No. 324811 was first issued on June 17, 2019, and is currently active. Such prior License record also reflects that there was one additional open complaint, two prior disciplined cases and one resolved/settled complaint 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.”

The only testimony Respondent presented with regard to the Complaint items was in relation to Complaint item 11. Respondent did not present any testimony with regard to the remaining Complaint items.

By way of Investigator Nipp’s testimony, the evidence established that Respondent’s work was not in compliance with the applicable building codes of this state by failing to obtain the required permits with regard to Complaint items 9 and 11, in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).

It was Respondent’s duty to ensure all proper permits were obtained prior to commencing work. Respondent performed the work without the proper permits in place. Complainant further 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) and (B) by failing to obtain the proper permits, or, at a minimum, not commencing work until they were obtained.

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards with regard to Complaint items 3, 9, 10, 11, 14, 28, 30 and 44. 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) and (B).

The evidence did not establish that Respondent contracted beyond the scope of its license with regard to Complaint item #11. The testimony differed with regard to who connected the gas line. Complainant testified that a plumber originally connected the gas line, but that Respondent subsequently disconnected it. The written directive notes indicated Complainant advised Investigator Nipp that Southwest Gas disconnected the gas line. Respondent denied it ever connected the gas line. Therefore, Complainant did not establish that Respondent knowingly contracted beyond the scope of its license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).

The evidence established that Respondent did not complete the corrective work following the written directive being issued to minimum workmanship standards. 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. 324811 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, July 17, 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