ALJDEC - Licensing

2024A-04359-CHC-ROC · Registrar of Contractors · 2024-10-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Cooney,

COMPLAINANT,

v.

J & N Contracting LLC

License No. ROC 343315,

RESPONDENT.

No. 2024A-04359-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Convened and concluded on September 27, 2024.

APPEARANCES:

For Complainant: David Cooney and Sarah Cooney.

For Respondent: Nate Hayter.

For the Registrar of Contractors: Daniel Otero.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1 to 26. Respondent’s Photographs jpg through jpg 14 and Exhibits 1 to 4.

_____________________________________________________________________

FINDINGS OF FACT

J & N Contracting LLC (Respondent) was the holder of License No. 343315 issued by the Arizona Registrar of Contractors (Registrar) on February 19, 2023.

On or about May 17, 2023, David Cooney (Complainant) entered into a contract with Respondent for, among other things, remodeling their bathroom.

On or about April 16, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator Daniel Otero, who issued a Jobsite Inspection Notice on April 17, 2024, scheduling the inspection for May 17, 2024. Investigator Otero conducted the jobsite inspection on May 17, 2024, and Respondent was present. On May 24, 2024, Investigator Otero issued a Written Directive From the Registrar to Respondent.

Complainant filed a second Complaint, claiming poor work on additional items. Investigator Otero issued a Compliance Jobsite Inspection Notice and a Jobsite Inspection Notice on June 19, 2024, and conducted both inspections on June 27, 2024. Investigator Otero indicated that Respondent was not present; however, Respondent claimed that he informed Investigator Otero that he would be unable to attend at that time and that Investigator Otero did not reschedule or facilitate remote attendance.

On June 28, 2024, Investigator Otero issued a Second Written Directive From the Registrar to Respondent. The Second Directive included the uncorrected items from the first directive, providing as follows:

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

Complaint Item [1]: - Shower floor - water drains out the door opening after attempt to correct pooling due to improper grade to the drain

Investigator’s Observation: Verified. At the time of the Inspection it was demonstrated by the complainant when the shower is turned on, the water makes it’s way to the doorway and out with the water only running for approximately 20 seconds. Only a small amount of the water goes to the drain. AT THE TIME OF THE COMPLIANCE INSPECTION IT WAS OBSERVED THERE HAD BEEN NOTHING DONE TO THE SHOWER FLOOR SINCE IT STILL DRAINS OUT OF THE DOOR RATHER THAN THE DRAIN, IT APPEARED THE SAME AS THE ORIGINAL JOBSITE INSPECTION. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [2]: - Shower grab bars not installed

Investigator’s Observation: Verified. At the time of the Inspection it was observed the grab bars were in the shower on the bench still in the boxes. DURING THE COMPLIANCE INSPECTION IT WAS OBSERVED THE GRAB BARS WERE INSTALLED IN THE WRONG LOCATIONS The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [3]: - Wooden window casing covered in splattered paint

Investigator’s Observation: Verified. At the time of the Inspection it was observed there was a significant amount of splatter all over the window trim. THIS ORIGINAL ITEM WAS COMPLETED, DURING THE COMPLIANCE INSPECTION IT WAS OBSERVED THE CHEMICAL THAT WAS USED TO REMOVE THE PAINT SPLATTER DAMAGED THE FINISH ON THE TRIM. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [4]: - Pocket door installed without guide has resulted in scratches and marring of door

Investigator’s Observation: Verified. At the time of the Inspection it was observed there were scratches on the bottom of the door where it had rubbed on the jamb. AT THE TIME OF THE COMPLIANCE INSPECTION IT WAS OBSERVED THERE HAD BEEN NOTHING DONE TO THE DOOR AND IT APPEARED THE SAME AS THE ORIGINAL JOBSITE INSPECTION. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [5]: - Vanity cabinets installed at incorrect height.

Investigator’s Observation: Verified. At the time of the Inspection it was observed the cabinets installed 3/4 of an inch to 1 1/2 inch higher than a typical bathroom vanity and per the plan provided to the Respondent. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

. . . .

Complaint Item [6]: - Shower window exterior frame requires paint to match house (trim completed but not window frame)

Investigator’s Observation: Verified. At the time of the Inspection it was observed the window frame did not match the other windows in the house and the glass is not tempered as it should be per code. AT THE TIME OF THE COMPLIANCE INSPECTION IT WAS OBSERVED THE EXTERIOR PORTION OF THE WINDOW WAS PAINTED TO ROC STANDARDS BUT THE GLASS PORTION HAS NOT BEEN CHANGED OUT TO TEMPERED GLASS. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [7]: - Construction trash and debris have accumulated on deck, yard and back driveway for months.

Investigator’s Observation: Verified. At the time of the Inspection it was observed there was construction trash and debris left from the remodel. AT THE TIME OF THE COMPLIANCE INSPECTION IT WAS OBSERVED THERE WAS STILL ALOT OF CONSTRUCTION DEBRIS AROUND THE FRONT OF THE HOUSE AND THE REAR AREA WHERE IT APPEARED TILE HAD BEEN CUT. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [8]: - Glass shower door not installed yet due to correction required to floor

Investigator’s Observation: Verified. At the time of the Inspection it was observed the shower door was not installed since the shower was not completed. AT THE TIME OF THE COMPLIANCE INSPECTION IT WAS OBSERVED THERE HAD BEEN NOTHING DONE TO THE SHOWER FLOOR SO THE DOOR CANNOT BE INSTALLED, IT APPEARED THE SAME AS THE ORIGINAL JOBSITE INSPECTION. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item [9]: - Floor heat vent cover to be installed as per design plan

Investigator’s Observation: Verified. At the time of the Inspection it was observed the vent register was missing and never installed. AT THE TIME OF THE COMPLIANCE INSPECTION AGREED UPON. The Respondent will need to correct this by the appropriate means.

The Written Directive required Respondent to notify Investigator Otero of Respondent’s compliance with the directive prior to 5:00 p.m. on July 15, 2024.

On or about July 17, 2024, Complainant updated Investigator Otero about Respondent’s work on the project. Complainant also provided photographs to represent the condition of the compliance items. In lieu of a Compliance Inspection at the end of the Directive period, Investigator Otero accepted Complainant’s updates and the photographs.

Based upon Complainant’s information, Investigator Otero determined that Compliance Items 1, 2, 3, 4, 5, 7, 8, and 9 were not completed by appropriate means.

On July 22, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on August 5, 2024. Respondent objected to the lack of a compliance inspection, stating as follows:

J&N Contracting has consistently adhered to the ROC’s directives and made every effort to rectify any issues raised. We believe that a final inspection is essential to accurately assess the current status of the project and to acknowledge the work that has been completed in accordance with the ROC’s instructions. We respectfully request that a final inspection be scheduled at the earliest convenience to ensure that all parties have a clear and accurate understanding of the current state of the project.

Respondent’s position was that the photographs were insufficient to demonstrate his compliance with the Directive. Respondent also addressed each of the compliance items.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On August 14, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for September 27, 2024, at 1:00 PM.

The hearing was held via Google Meet on September 27, 2024.

Complainant declined to postpone the hearing for a compliance inspection.

Investigator Otero testified in support of his investigation. He testified that the photographs and Complainant’s statements were sufficient for his determination that Respondent failed to comply with the Directive items. He testified that the Directive mislabeled the allegations as violations of A.A.C. R4-9-108(C) instead of A.A.C. R4-9-108(A) but that the Citation accurately reflected the alleged violation.

Complainant testified in support of each of the violations identified by Investigator Otero. Complainant testified that Respondent came only during the last three days of the Directive period to perform corrective work.

Respondent testified that other contractors had worked in the space, and they might have impacted several of the compliance items. Respondent also argued that it was denied access for several days.

Complaint Item 1: The parties testified that Respondent did not correct this item.

Complaint Item 2: Complainant testified that his concern was that the grab bars did not have the proper structural support. However, the Directive did not require Respondent to correct the structural supports for the grab bars. The Directive required the grab bars to be installed; then, Investigator Otero testified that he saw plans, showing the grab bars in a different location than where Respondent installed them. Investigator Otero determined that Respondent installed the bars in the wrong locations.

Complaint Item 3: Respondent corrected the discoloration, but in doing so, Respondent caused the windowsill to be sticky.

Complaint Item 4: Respondent did not do corrective work for this item. Respondent claimed that other contractors may have damaged the door.

Complaint Item 5: Another contractor installed countertops on the cabinets after Respondent had finished installing them. However, Respondent lowered the cabinets after the other contractor worked on them. In the process of lowering the cabinets, Respondent damaged the backsplash.

Complaint Item 7: Complainant credibly testified that the owners cleaned the property.

Complaint Item 8: The parties testified that Respondent did not correct this item.

Complaint Item 9: Respondent corrected this item. Complainant claimed that the vent used was not to industry standards, but the Tribunal did not receive expert testimony, a reference to applicable standards, or a reference to manufacturer use information that would allow it to make such a determination. The preponderance of the evidence established that Respondent corrected this item.

Complainant testified that Respondent did not do work for several weeks. Respondent testified that he was on vacation, that he had communicated with Complainant, and that he had not abandoned the project.

Complainant testified that Respondent had other workmanship issues.

Administrative notice was taken of Respondent’s prior License record on October 8, 2024. According to that record, Respondent’s License No. 343315 was active; it had one open complaint and no prior complaints.

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. Respondent bears the burden of proof to establish an affirmative defense 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.”

For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. For complaint-specific items, only alleged violations identified by the Investigator and deemed uncorrected are noticed in the Citation: as stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to charge Respondent, charges were not incorporated into the Citation.

Generally, the Registrar’s process provides a Respondent the opportunity to correct its deficient work by appropriate means. For ordinary cases like this one, the alleged deficiency is not ripe for hearing without the opportunity to correct the work.

Although the Directive identified the wrong rule as the basis for the alleged violations, the record contains no evidence to demonstrate that this clerical error caused Respondent any confusion about the alleged deficiencies in workmanship or unduly prejudiced Respondent.

In correcting work pursuant to a Written Directive From the Registrar, a contractor cannot damage property or create additional workmanship issues. Any damage or new deficiencies in workmanship must be fixed before the directive period ends.

Abandonment means to give up on, withdraw from, or cease or surrender involvement in the project and contract. A contractor’s actions, or inaction, must be so severe that a person could reasonably infer the contractor’s intent to abandon the project, incurring the consequences of that abandonment. Mere untimeliness or inefficiency does not amount to abandonment.

During the Directive period, homeowners cannot refuse access to a contractor and seek discipline against that contractor. Refusing access impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, homeowners are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means.

Compliance inspections protect both complainants and contractors by establishing the condition of the project, and work completed, at the end of the Directive period and an expert opinion about the compliance of that work. A final compliance inspection is not required for a matter to go to hearing, but if an investigator does not conduct a final compliance inspection, then the investigator’s testimony is only as reliable as the information used to reach their opinions. The investigator’s testimony must be discounted accordingly because the investigator did not see the condition of the project in person. In that situation, the burden of establishing the condition of the property and compliance with applicable statutes and rules, is entirely on the parties and the information they provided instead of upon the assigned expert.

The preponderance of the evidence failed to support the affirmative defense of modification.

The preponderance of the evidence failed to establish that Respondent abandoned the project or refused to perform work without a legal excuse in violation of A.R.S. § 32-1154(A)(1).

The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Compliance Items 1, 2, 3, 4, 5, 7, and 8.

The preponderance of the evidence 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), specifically regarding Compliance Items 1, 2, 3, 4, 5, 7, and 8.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for four days Respondent’s License No. 343315.

It is further recommended that the Registrar require Respondent to pay the sum of $100 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 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, October 17, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

J & N Contracting LLC

[email redacted]

[email redacted]

David Cooney

[email redacted]

Daniel Otero

[email redacted]

By: OAH Staff