ALJDEC - Licensing

2024A-00708-CHC-ROC-RH · Registrar of Contractors · 2024-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Melissa Chestnut,

COMPLAINANT

Shear Line Construction LLC

License No. ROC 321492,

RESPONDENT

No. 2024A-00708-CHC-ROC-RH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 25, 2024

APPEARANCES: Complainant Melissa Chestnut appeared on her own behalf via Google Meet. Eric Danielson appeared via Google Meet on behalf of Respondent Shear Line Construction LLC. Registrar of Contractors Investigator Lisa Melton appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Shear Line Construction (Respondent) is the holder of License No. 321492 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 28, 2023, Complainant hired Respondent to install exterior doors in her home in Scottsdale, Arizona. The contracted amount was $16,595.00.

On or about January 8, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the present complaint to Investigator Lisa Melton. The jobsite inspection was performed on March 4, 2024.

Investigator Melton then issued a Written Directive on or about March 11, 2024, which provided in pertinent part 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 March 28, 2024.

...

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: Trifold door was installed but the built in moving screen was never installed. We don't know how to install it. ;

Investigator’s Observation: Respondent did not appear for inspection. Work stopped on November 1, 2023. Door has been installed in opening, however, the screen (on site) has not been installed. Respondent should complete their entire scope of work by appropriate methods and in accordance with contract, executed change orders, specifications, drawings, building code/requirements of the local building authority (permit/inspection), manufacturer recommendations, industry and workmanship standards.

Governing Rule:

A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item 2: The contractor required $12,500 down for materials. He partially installed one door valued at $8,200 and has not provided matrials or returned the remaining down payment. ;

Investigator’s Observation: Respondent did not appear for inspection. Work stopped on November 1, 2023. One door has been installed, however, the screen (on site) has not been installed. Respondent should complete their entire scope of work by appropriate methods and in accordance with contract, executed change orders, specifications, drawings, building code/requirements of the local building authority (permit/inspection), manufacturer recommendations, industry and workmanship standards.

Governing Rule:

Compliance Item 3: We've tried calling and texting the contractor but he has us blocked on both our numbers. Its been 5 months since we initiated the contract and he won't work with us to resolve the issue. ;

Governing Rule:

ITEMS NOT REQUIRING CORRECTION

Compliance Item 4: Trifold door was installed but trim was not completed.

Investigator’s Observation: This is relative to the only door which has been installed (See Item #1). Baseboard trim is greater than 3/8” from door frame on both sides. Contract scope makes no reference to baseboard. Insufficient evidence to substantiate poor work relative to this item.

Governing Rule: Not Applicable...

(All errors contained in the original).

On April 8, 2024, Investigator Melton sent an email to the parties inquiring as to the status of the work which needed to be corrected. After receiving a response informing her that work was not completed, Investigator Melton referred the matter to the Registrar’s Legal Department to issue a Citation.

On April 21, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

On or about April 25, 2024, Respondent submitted an Answer to the Registrar.

On or about May 21, 2024, a Notice of Hearing was issued setting a hearing on June 27, 2024, at the Office of Administrative Hearings, an independent state agency.

The matter was continued for Status Updates, and when the parties failed to timely provide the same, the matter was vacated and remanded back to the Registrar.

On September 27, 2024, the Registrar issued an Order Granting Rehearing, and on October 11, 2024, a Notice of Hearing was issued setting a hearing on November 25, 2024.

Prior to hearing on November 20, 2024, Investigator Melton conducted a prehearing inspection and found the following:

PREHEARING INSPECTION

Compliance Item 1: Trifold door was installed but the built in moving screen was never installed. We don't know how to install it. ;

Investigator’s Observation Jobsite Inspection: Respondent did not appear for inspection. Work stopped on November 1, 2023. Door has been installed in opening, however, the screen (on site) has not been installed. Respondent should complete their entire scope of work by appropriate methods and in accordance with contract, executed change orders, specifications, drawings, building code/requirements of the local building authority (permit/inspection), manufacturer recommendations, industry and workmanship standards.

1st Prehearing Inspection Findings – June 26, 2024 5:00 p.m.: At the inspection, the screen is onsite but has not been installed.

2nd Prehearing Inspection Findings – November 20, 2024: At the inspection, the screen is onsite but has not been installed. (Attached Photo #2)

Governing Rule:

Compliance Item 2: The contractor required $12,500 down for materials. He partially installed one door valued at $8,200 and has not provided matrials or returned the remaining down payment. ;

Investigator’s Observation Jobsite Inspection: Respondent did not appear for inspection. Work stopped on November 1, 2023. One door has been installed, however, the screen (on site) has not been installed. Respondent should complete their entire scope of work by appropriate methods and in accordance with contract, executed change orders, specifications, drawings, building code/requirements of the local building authority (permit/inspection), manufacturer recommendations, industry and workmanship standards.

1st Prehearing Inspection Findings – June 26, 2024 5:00 p.m.: At the inspection, I was shown all four of the doors that were inspected relative to this Complainant and the Written Directive. Since the time of my last inspection, the kitchen door has been partially installed but the exterior installation is not complete. The living room screen is onsite but has not been installed and the two remaining uninstalled doors (bathroom and bedroom) are unchanged.

2nd Prehearing Inspection Findings – November 20, 2024: At the inspection, I was shown all four of the doors that were inspected relative to this Complainant and the Written Directive. Since the time of my last inspection:

• The kitchen door has been partially installed but the exterior installation is not complete and the hardware is not complete. The door is scratched, stained and scuffed. Complainant has no key. (Attached Photos 3-6)

• The bathroom door exterior installation is not complete and the hardware is not complete. Door is scratched, stained and scuffed. Door is missing sweep and is warped in this area. Complainant has no key. (Attached Photos 7-11)

• The existing bedroom door has still not been replaced. (Attached Photos 12)

Governing Rule:

• The bathroom door exterior installation is not complete and the hardware is not complete. Door is scratched, stained and scuffed. Door is missing sweep. Complainant has no key.

(Attached Photos 7-11)

• The existing bedroom door has still not been replaced. (Attached Photos 12)

Governing Rule:

A.R.S. §32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid o nwork without legal excuse for the abandonment or refusal

ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

(All errors contained in the original).

At hearing, Investigator Melton testified as to the Registrar’s involvement and the above timeline and findings from her inspections.

Investigator Melton testified that a representative from Respondent failed to appear at the April 2, 2023, and the November 20, 2024 jobsite inspections.

Further, Ms. Melton testified that the work is still incomplete despite the Directive expiring over 7 months ago.

Complainant testified that she believed that the project was supposed to be completed before the holidays in 2023, and that it was almost the holiday time again, and the project still was not completed.

Further, Complainant testified that work started on October 30th or 31st, and then stopped on November 1, 2023. Complainant testified that in early December Mr. Danielson informed her husband that the project would not be completed by the holidays in December.

Westley (Cody) Chestnut testified that he received pictures of a broken leg on December 28, 2023, but he was unaware that it was from Mr. Danielson. Mr. Chestnut also testified that regardless of the accident, the project still should have been finished prior to the holidays in 2023.

Eric Danielson testified that there was not much more work to finish and that he did not abandon the job. Mr. Danielson testified that he suffered injuries to his leg due to an accident on December 24, 2023, and he informed Complainant’s husband of the same on December 28, 2023.

Mr. Danielson testified that since that time, but for a conversation in September 2024, the Complainant and her husband would not communicate with him, and was not allowed back onto the project.

In addition, Mr. Danielson testified that he does not leave projects unfinished, and believed that this was a false and malicious complaint against him. However, Mr. Danielson did admit that he could have handled this matter differently.

Administrative notice was taken of Respondent’s prior License record on December 10, 2024 Such prior License record reflected that Respondent’s License No. 321492 was first issued on August 28, 2024, and reflected that the license was suspended as of September 2, 2024 due to non-renewal.

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 preponderance of the evidence established that Respondent stopped working on the project on November 1, 2023, and did not notify Complainant until December that the project would not be completed on time. Further, while the tribunal understands the accident and injuries suffered by Mr. Danielson, from the evidence provided, it was clear that the communication could have been better. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence established that Respondent’s work was not within workmanship standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B), as Respondent was not diligent in its efforts to fulfill the contract, and there was only partial completion of the project and several defects were noted as well.

Finally, the preponderance of the evidence established Respondent failed to fully 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. 321492 for a period of ten days.

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)(7), 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, December 10, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Melissa Chestnut

[email redacted]

Shear Line Construction LLC

[email redacted]

By: OAH Staff