ALJDEC - Licensing

2024A-02751-CHC-ROC · Registrar of Contractors · 2024-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Bram,

COMPLAINANT,

v.

Blue Agave Construction LLC,

License No. ROC 333264,

RESPONDENT.

No. 2024A-02751-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 5, 2024.

APPEARANCES: Homeowners Barbara and Andrew Bram appeared, representing themselves. Jarom D. Rogers, Qualifying Party (QP), and Jessica Curtis, Office Manager, appeared on behalf of Blue Agave Construction LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet).

_____________________________________________________________________

FINDINGS OF FACT

Blue Agave Construction LLC. (Respondent) is the holder of General Dual KB-1 Dual Building Contractor License No. 333264 issued by the Arizona Registrar of Contractors (Registrar or ROC) on May 6, 2021.

On or about August 31, 2023, Barbara and Andrew Bram (Complainant) signed a contract with Respondent for cabinets in the kitchen, laundry and master bathroom for a total contract price of $36,213.75. Respondent began work on September 11, 2023.

On or about April 4, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project. Complainant indicated that work on the project was last performed on November 10, 2023.

The Registrar’s Investigator Todd Anderson sent a letter to the parties scheduling a jobsite inspection for April 24, 2024.

Investigator Anderson conducted a jobsite inspection on April 24, 2024. The Investigator’s jobsite notes indicate that Respondent was not present at the inspection.

Investigator Anderson inspected the complaint and addendum items and, after the jobsite inspection, he issued a written directive dated April 24, 2024 to Respondent that provided the following statements:

After investigation, the Registrar has verified 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 May 24, 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: 1 - I was told that there was a team to get the job done in 2 weeks. There was no plan or crew to do it. I tried 9 times between Nov 3 and Dec 14 to contact GC to arrange to meet at our house to discuss the

issues and hoped that he would hire experienced subs to fix the problems and finish properly. The GC did not return my texts or calls.

Investigator’s Observation: The contract was signed on August 31, 2023. Work was started September 11, 2023. As of the date of the Jobsite Inspection (April 24th, 2024), the remodeling project is still not completed.

The Respondent’s contract includes: “Contractor shall at all times operate in good faith to complete the Work in a time efficient manner...” All work needs to be completed as per contract, manufacturer’s specifications, change orders, local building codes, and industry standards.

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.

Compliance Item: 3 - Some cabinets are screwed to the wall and some are

not.

Investigator’s Observation: Not all cabinets pointed out by the complainant had screws through the backs of the cabinets and into the walls. The cabinetry should fit, be square, and securely attached. Contractor shall correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Molding on left side of refrigerator was not cut properly.

Investigator’s Observation: Verified. This particular piece of molding had a rough cut to it and the edges were not painted or calked. Contractor shall correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Molding on the end cabinet on the range side is loose.

Investigator’s Observation: Verified. Trim should fit, be square, and securely attached. Contractor shall make necessary repairs.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 11 - Dishwasher was not properly put back in place.

Investigator’s Observation: Verified. The dishwasher was not installed flush and is crooked. Contractor shall correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 12 - Two pieces of wood were placed between the dishwasher and the end panel. They fell out when bumped into by the vacuum.

Investigator’s Observation: Verified. The two pieces were not attached and were sitting on the countertop. Trim should fit, be square, and securely

attached. Contractor shall make necessary repairs.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 13 - Pony wall was cut down, but it was not straightened

out and the drywall was not done.

Investigator’s Observation: Verified. There is a void/gap between the drywall and underside of the countertop. Drywall around the top of the pony

wall is damaged. Contractor shall correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 16 - The outlet in the sink cabinet was recessed too far

back and the plumber put a power strip there temporarily.

Investigator’s Observation: Verified. The electrical box and receptacle in

the sink cabinet is recessed more than 1/4 inch from the surface of the cabinet back panel, and is missing a cover plate. Electrical boxes installed incombustible surfaces are to be flush with the surface. Installed receptacles should allow for normal usage, without requiring the use adapters, extension cords, and/or power strips (IRC E3906.5). Contractor shall correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - The inside of the cabinets in the kitchen and laundry room have gaps between the sides and bottom.

Investigator’s Observation: Conditions described are present; however, not excessive, therefore considered to be meeting workmanship standards.

Governing Rule: N/A

Compliance Item: 4 - Spacers between the cabinets and walls are not covered at the top and bottom.

Investigator’s Observation: Filler boards are currently installed flush to surface of the cabinet face frame, and extend from the top of the face frame, to the bottom of the face frame. There are no filler boards between the top or bottom of the cabinet boxes and the walls. This is an industry standard installation. This is only visible from under the cabinet looking up, or from above the wall cabinets looking down. Unless specified in a contract, or on an approved plan, filler boards between the top or bottom of the cabinet boxes and the walls is not common or required.

Governing Rule: N/A

Compliance Item: 5 - Crown molding in the laundry room should be replaced with one piece of wood that properly fits between the walls.

Investigator’s Observation: It is a standard industry practice to join two pieces of crown molding across a wall or cabinet to form one cohesive piece. Meets industry standards.

Governing Rule: N/A

Compliance Item: 6 - There is a hole behind the refrigerator that needs to be covered.

Investigator’s Observation: There is an existing shut-off valve located behind the refrigerator. It appeared as though the refrigerator was now getting its water supply from another source in the kitchen. These shut-off valves must remain accessible in the event of a leak. Unless specified in the contract to install an access panel, I cannot direct the contractor to cover this. Meets industry standards.

Governing Rule: N/A

Compliance Item: 7 - Panel on side of refrigerator is not deep enough so the refrigerator sticks out too far and counter is not straight.

Investigator’s Observation: The Fridge/End Panel was mounted flush to

the back wall and is 24” deep which is what was specified on the drawings

supplied and approved by the homeowner.

Governing Rule: N/A

Compliance Item: 10 - All of the cabinets need to be adjusted and latches

(hinges) need to be adjusted so that doors don't touch the walls.

Investigator’s Observation: The hinges currently installed are a standard

type of cabinet door hinge. There is no evidence the respondent was contractually obligated to install hinges that have the capability of limiting

travel.

Governing Rule: N/A

Compliance Item: 14 - The cabinets and pony wall were not prepaired [sic]

before countertop installation.

Investigator’s Observation: Unable to verify, not visible or accessible during this inspection. Installation of cabinets and countertops is complete.

Governing Rule: N/A

Compliance Item: 15 - Many quartz countertop issues including the seam and overhang on the peninsula

Investigator’s Observation: The seam was visible; however, when two pieces of quartz countertop are joined together, some amount of visibility is expected. The visibility, flatness, and width of the seam are all considered to be meeting workmanship standards. In regards to the overhang, the Homeowner was concerned that the plywood underneath the countertop was not covered. The heavy 2cm quartz countertop is set on plywood in order to give extra support. The laminated edges covered, and prevented view of, the edges of the sub-tops when looking at the cabinets from a normal viewing height. There is no evidence the respondent was contractually obligated to install any type of covering over the bottom of the sub-top. This meets industry standards.

Governing Rule: N/A

Investigator Anderson received an email from Respondent on May 17, 2024, indicating Respondent had met with Complainant and would get the work done the next week.

Investigator Anderson received an email from Complainant on May 23, 2024, indicating that she had been contacted by Respondent [Jarom Rogers] on May 13, 2024, apologizing and wanting to take care of everything and would have someone come over. When Investigator Anderson spoke with Complainant the next day, she told him that trade contractors had come by on May 14th to inspect, and on the 21st and 22nd, but no work had been done yet.

Investigator Anderson did not conduct a compliance jobsite inspection because when he spoke with Complainant on May 28, 2024, she indicate no additional work had yet been done.

On June 5, 2024, the Registrar issued a Citation against Respondent, charging possible violations: A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); and A.R.S. § 32-1154(A)(22).

On June 6, 2024, Respondent emailed its Answer to the Citation, stating as follows:

We are responding to the citation for complaint 2024-027501. We have been in contact with Barbara Bram since May 8th, 2024. Our contractor, Jarom Rogers, met with Barbara on May 14th at 4:00 pm at the jobsite. On May 15, 2024, Jarom contacted the 5 subcontractors needed to finish the job. Tile Installer responded back with the earliest availability of May 22, 2024 at 8am, but when the subcontractor showed up for the appointment, the homeowner had not purchased the material needed (tile) and sent him away. She has not provided the material (tile), per the original contract, to install tile backsplash as of 6/6/2024. Finish Cabinetry and Countertop Fabrication responded with earliest appointment dates of 6/7/2024. Plumbing and Electrical subcontractors looked through scope and it was determined that they would not be able to complete their portion and advised to not schedule their appointments until countertops were installed. As of today, the timeline of work is as follows:

Finish Cabinetry: To be completed 6/7/2024

Countertop Measurement/Template: 6/7/2024

Countertop Installation: 3 weeks from measurement date (Tentatively June 28, 2024)

Tile Backsplash: To be scheduled when the client procures material needed (tile) to complete work. Subcontractor has estimated 1 day to complete work.

Finish Electrical: TBD when countertops are installed (Tentatively week of July 1, 2024)

Finish Plumbing: TBD when countertops are installed (Tentatively week of July 1, 2024)

We estimate this job to be completed by July 5, 2024 (tentatively) if the homeowner has availability in her schedule to accommodate our subcontractors when they are first available.

We apologize for the delay in response to the original complaint. An email was sent to the investigator (Todd Anderson) on May 17, 2024 confirming receipt of the written directive, but we were unaware of the proper procedures to respond to a written directive. We are now aware of the proper procedures after speaking with the investigator (Todd Anderson) today, June 6, 2024.

The matter was not completely resolved by the parties prior to the administrative hearing.

At hearing, Mrs. Bram related their frustrations with the project manager, Tyler, and the project in many ways: that the wrong cabinets had been ordered and/or that Tyler told them he had not “measured;” that they had emptied out the kitchen and laundry cabinets, which made the home unlivable while the project went on and on and was not finished in the fall; plus, when the cabinets were first installed, there were no handles and knobs; that they had believed it was necessary to get the cabinets finished and wait for the backsplash to be done before the countertops were installed. Complainants felt that Tyler treated this project as just some small project and he was uncooperative with the Bram’s schedule, but for Complainants it was a big project and not just some “punch items” left to be finished.

At the hearing, Mr. Rogers indicated that he had not been aware of any of the issues until he became aware of the Directive and that timeline. Mr. Roger indicated that Tyler had been the project manager and, based on Respondent’s records, the work progress had stopped in the fall because the homeowner had not yet supplied the tile for the backsplash.

Ms. Curtis related the timeline of events and arrangements with the trade contractors since the May 13, 2024 contact with Complainant. Ms. Curtis further related that there were multiple efforts to arrange work to be done, sometimes not hearing back from Complainant and sometimes Complainant being unable to be available. Ms. Curtis indicated that everything was now done with the exception of one outlet in the bathroom and some drywall under a pony wall; she indicated that there were again multiple efforts throughout July to try to arrange with Complainant a time for the electrician to finish the outlet.

While Complainant continued to express her frustration with the manner in which Tyler had handled the work progress and how that had impacted their ability to be comfortable living with the slow and then stopped work, she acknowledged that she was extremely happy with the work that has been done.

At the end of the hearing, Complainants humbly provided explanations related to multiple medical issues Mr. Bram had been going through during the entire process including the Directive time frame and, especially during the July scheduling issues.

Administrative notice is taken of Respondent’s license records on August 25, 2024. Respondent’s licensure records reflects that the instant complaint is the only open complaint against Respondent’s License No. 333264.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Following the issuance of the Directive mandating correction of the window installations regarding workmanship, Investigator Anderson found those workmanship contracting violation issues still existed at the time of the compliance inspection. At hearing, Investigator Anderson indicated that those same workmanship issues remained uncorrected.

10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108, for failure to perform all work in a professional and workmanlike manner.

11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 333264 as follows:

a one business-day suspension on the effective date of the Registrar’s Order in this matter; and,

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 may 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)(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, August 26, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Blue Agave Construction LLC

[email redacted]

Barbara Bram

[email redacted]

Todd Anderson

[email redacted]

By: OAH Staff