ALJDEC - Licensing

2024A-01814-CHC-ROC · Registrar of Contractors · 2024-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kevin Devon Jasper ,

COMPLAINANT

v.

BACLARK CONSTRUCTION LLC

License No. ROC 340635,

RESPONDENT

No. 2024A-01814-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 23, 2024 and November 19, 2024.

APPEARANCES: Kevin Devon Jasper appeared on his own behalf. Brandon Clark appeared representing Baclark Construction. John Peru, Investigator, appeared on behalf of the Arizona Registrar of Contactors.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet; Complainant’s Pre-hearing disclosure [Exhibits 1 through 14].

_____________________________________________________________________

FINDINGS OF FACT

Baclark Construction, LLC (Respondent) is the holder of License No. 340635 [CR-61, Carpentry, Remodeling, and Repairs] issued by the Arizona Registrar of Contractors (Registrar or ROC) in September 2022. Brandon Clark is Respondent’s Qualifying Party and Manager.

In December 2022, Complainant contracted with Respondent for Respondent to construct an addition of 617 square feet to Complainant’s existing home. In December 2023, Complainant and Respondent entered into a further contract with regard to items remaining to be completed on the project.

On February 14, 2024, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that there were delays in the parties’ construction projects, that Respondent had asked for advance payments, that Respondent’s acts or inactions had caused damage to the home which was not yet repaired, and that the HVAC system was not yet installed on the addition for which the certificate of occupancy was still needed.

The Registrar assigned the Complaint to Investigator John Peru. Investigator Peru conducted, a jobsite inspection on March 20, 2024.

Investigator Peru issued a Written Directive to Respondent, dated March 25, 2024, that 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 Tuesday, April 9, 2024.

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

Compliance Item: 1 - Breach of contract on communication and schedule

for project

Investigator’s Observation: At the time of this Inspection, both parties

acknowledged that the project is not completed per contract. REF: (JSI PICS).

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 - Delay of project by 7 weeks due to argument

contractor had with architect. No work was compltd. & contrcts not on site.

Investigator’s Observation: At the time of this Inspection, both parties

acknowledged that the project is not completed per contract. REF: (JSI PICS).

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: 4 - Damages to inside home not repaired. Rain has

created damage and mold. No estimated expectation when repair will happen

Investigator’s Observation: At the time of this Inspection, both parties

acknowledged that the project is not completed per contract, the Respondent

has made progress in making the repairs, however it is not finished. REF: (P)1

through (P)4.

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: 5 - 2nd contract generated with completion date of

1/31/24. Work has not yet been completed.

Investigator’s Observation: At the time of this Inspection, both parties

acknowledged that the project is not completed per contract. REF: (JSI PICS).

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: 6 - Addition still needs HVAC unit and Cert. of occupancy

has not been obtained and property is in HOA Community.

Investigator’s Observation: At the time of this Inspection, both parties

acknowledged that the project is not completed per contract. The Original

HVAC Unit/Condenser is in the process of being relocated. The Respondent

stated that the second HVAC Unit is in the process of being ordered. The

Respondent must complete the installation/ relocation of the original system

per plans, and provide proof of ordering the second HVAC system per contract

within the Written Directive Process due date. All HVAC installations/modifications must be in accordance with the Municipality

Building Dept, per code compliance. REF: (P) 5 through (P) 7.

Governing Rule: 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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Asked for advance prior to phase two being completed

Investigator’s Observation: Financial/contractual disputes not within

the ROC jurisdiction. REF: (JSI PICS).

Governing Rule:

When the work was not completed by the Written Directive deadline, Investigator Peru forwarded the matter to the Registrar’s Legal Department.

On April 11, 2024, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

By e-mail dated April 25, 2024, Respondent filed a response, informing the Registrar that the AC unit was been ordered [on April 9, 2024], had been delivered, and was in the process of being installed.

However, the matter was not resolved between the parties and, on May 21, 2024, the Registrar issued its Notice of Hearing setting the hearing for June 28, 2024.

On Friday, June 28, 2024, at a pre-hearing conference, the parties discussed the matter. Investigator Peru was present to indicate that the Written Directive items had not been completed by the Written Directive deadline.

On June 28, 2024, Complainant indicated that one final construction item, the re-installation of the relocated AC unit, remained to be completed and he and Respondent acknowledged that the item was being reinstalled at that time. Complainant agreed that Respondent would be given the opportunity to complete that item and requested to have a status update pre-hearing in several days. Respondent agreed that the item needed to be completed. Complainant agreed that he would update the Tribunal and the Investigator with regard to the completion.

On July 5, 2024, at the time of a further scheduled pre-hearing, the AC unit was still not operational. Complainant indicated that the reinstallation was proceeding but, first, a part had been needed and, then, more refrigerant had been needed. The parties had previously talked and Respondent had agreed to also remove the debris/trailer that day; however, Respondent did not appear at the pre-hearing and had not yet arrived at the site on July 5, 2024 to remove the debris/trailer.

Due to noncompletion of the project at that time, and based on Complainant’s request, the Tribunal rescheduled the matter for disciplinary hearing on July 23, 2024.

On July 23, 2024, the parties spoke informally and came to a verbal agreement with regard to a financial settlement of the matter. The parties agreed that Respondent would reimburse Complainant in the amount of $2,700.00 by August 6, 2024 as a settlement of the matter in order to close the Complaint. Complainant graciously agreed that he would update the Tribunal as to the status of the settlement such that the matter could be closed by the Registrar rather than result in discipline on Respondent’s license.

Complainant received partial payment and graciously updated the Tribunal and Registrar regularly as to the matter so that the matter could be closed out by the Registrar. However, Complainant has not received a final payment on the settlement and requested the Tribunal issue a decision.

On November 19, 2024, Complainant confirmed the matter was not resolved informally by the parties. Investigator Peru confirmed that Respondent’s License No. 304635 was suspended on September 9, 2024 due to the lack of a surety bond.

Administrative notice is taken of the Registrar’s public record posted as of December 13, 2024. Respondent’s License No. 340635 is currently suspended for non-renewal. Such prior License record also reflects that there are four open complaints, including the instant Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

The Registrar’s Mission Statement as set forth on the public website is: “Protect the health, safety and welfare of the public through a regulatory system designed to promote quality construction by Arizona Contractors.”

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.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

The uncontroverted evidence of record established that Respondent’s work on Complainant’s project was not in conformity with the Registrar’s standards. Respondent’s noncompletion of the Complainant’s AC reinstallation during the summer in Arizona’s climate is unconscionable.

The hearing record established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The hearing record established that Respondent did not complete the all of the corrective work following the issuance of Written Directive being issued. Respondent did not establish any valid justification for its failure to comply with the Written Directive. 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).

The Administrative Law Judge concludes based upon the evidence presented herein and the Registrar’s Mission Statement, that in order to protect the citizens of the State of Arizona from a similar fate as suffered by Complainant that Respondent’s license should be revoked.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s ROC License No.340635.

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 13, 2024.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Director

Registrar of Contractors

c/o Legal Department

[email redacted]

John Peru

[email redacted]

Kevin Devon Jasper

[email redacted]

BACLARK CONSTRUCTION LLC

[email redacted]

By: OAH Staff