ALJDEC - Licensing
2024A-04651-CHC-ROC · Registrar of Contractors · 2025-01-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brewer Family,
COMPLAINANT,
v.
LUMINOUS BUILDERS LLC
License No. ROC 335707,
RESPONDENT.
No. 2024A-04651-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 2, 2025.
APPEARANCES:
For Complainant: Beatrice and Patrick Brewer.
For Respondent: Attorney Megan Schandle and Aldo Arroyo.
For the Registrar of Contractors: Investigator John Peru.
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 (Notice of Hearing). Complainant’s Exhibits 1–3. Respondent’s Exhibits 1–17.
_____________________________________________________________________
FINDINGS OF FACT
Luminous Builders LLC (Respondent) was the holder of License No. 335707 issued by the Arizona Registrar of Contractors (Registrar) on November 24, 2021.
On or about January 10, 2024, Beatrice Brewer (Complainant) entered into a contract with Respondent for, among other things, design and install a backyard landscaping project consisting of Turf, Gravel, Travertine, a Concrete pad extension, and pavers.
On or about April 24, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.
The Registrar assigned the complaint to Investigator John Peru, who issued a Jobsite Inspection Notice on April 25, 2024, scheduling the inspection for May 15, 2024, at 9:30 AM. The Jobsite Inspection was rescheduled to 8:45 AM on the same day.
Investigator Peru conducted the jobsite inspection on May 15, 2024, and Respondent was present. Following the inspection, Investigator Peru issued a Written Directive From the Registrar to Respondent on May 17, 2024, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - RV Gate pavers are poorly done, not level, dug too
deep Had to purchase a casing to cover the drip line
Investigator’s Observation: At the time of this Inspection, the Paver Drive on the RV Gate Side had excessive lippage (>1/8" vertical displacement for inter-locking Pavers)on multiple pavers. Additionally, there is an area that has sunk in. Furthermore, there are two excessive gaps at the Paver Drive/ sidewalk junction. REF: (P)1 through (P)5.
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 - RV gate drip line is damaged and not working The drip main line to the RV gate area is exposed
Investigator’s Observation: At the time of this Inspection, The RV Irrigation Line was left exposed and not buried. REF: (P)6.
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 - Patio and spa travertine poorly done and not corrected to satisfaction.
Investigator’s Observation: At the time of this Inspection, there were (3) Travertine Spa Steps that had damage on the edges. Additionally, there were (3) damaged Travertine Pavers on the Main Patio, and (1) area on the Main Travertine Patio where there was excessive lippage. Furthermore, the Respondent acknowledged that the "Final Sanding" had not been completed, and that the Travertine Patio still needs to be finished with the "Final Sanding." REF: (P)7 through (P)14.
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 - Crushed Granite Rock in Rear Yard incomplete.
Investigator’s Observation: At the time of this Inspection, both parties acknowledged that the Crushed rock was sparse in between the Paver Steps, and that there were areas throughout the Rear Yard that still needed the rock to be spread out evenly/and or more rock added if needed. Both parties agreed to add/ and review this New Complaint Item at the time of this inspection. REF: (P)15, (P)16.
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.
The Written Directive required Respondent to notify Investigator Peru of Respondent’s compliance with the directive prior to 5:00 p.m. on June 3, 2024.
Investigator Peru did not include complaint items one and four due to correction and modification.
Respondent attempted to enter the property on May 23, 2024. They notified Investigator Peru that they were denied access. Investigator Peru responded by encouraging the parties to communicate by email, including Investigator Peru on the email chain.
On May 24, 2024, the community management group assigned a temporary gate code of #4415 to Complainant for use by Respondent until June 7, 2024.
Complainant provided the temporary gate code to Respondent on May 24, 2024, and requested notice from Respondent about the date and time Respondent intended to return to the property. On May 27, 2024, Respondent notified Complainant that they would be at the property on May 28, 2024, between 8:00 AM and 2:00 PM. Complainant was not at the property when Respondent arrived. At 12:27 PM on May 28, 2024, Complainant apologized for the inconvenience, stating they did not see the email until that afternoon. Twelve minutes later, Complainant sent another email, stating that they were expecting a phone call, not just the email; additionally, Complainant also stated: “if you have changed your number, we would appreciate updated information. If you do call and we are unable to answer, please leave us a message.”
On May 28, 2024, at 1:28 PM, Respondent notified Investigator Peru about the denial of access. Respondent stated that the gate code did not work, and another community member let Respondent’s team into the community. Respondent stated that Complainant’s RV gate was locked, and “no answer was received by the Brewers via phone.” Investigator Peru forwarded Respondent’s email to Complainants; he stated that Complainants had one more chance to provide access.
On May 28, 2024, Investigator Peru effectively granted an indefinite extension to accommodate for the poor communication between the parties.
On May 29, 2024, Respondent notified Complainant would be at the property on June 5, 2024, between 10:00 AM and 2:00 PM to “do a thorough inventory and mark all the areas that require corrections and/or repairs.”
On June 5, 2025, Respondent notified Investigator Peru that they were unable to access the property using the code provided by Complainant. Respondent also stated that their representatives called Complainant three times.
Investigator Peru testified that in response, Complainant sent him evidence of the code working. Investigator Peru decided that he should test the gate code himself, and on June 6, 2024, at approximately 10:30, he successfully entered the gated community using the gate code provided by Complainants. He sent a video of the gate working on June 6, 2024. Respondent provided three photographs in response. On June 7, 2024, Investigator Peru ended the extension and referred the matter to the legal department.
On June 11, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of 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 June 26, 2024. Respondent’s Answer denied the allegations and asserted that Respondent had been denied access to the property.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On July 31, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for September 12, 2024, at 1:00 PM. Complainant requested a continuance on September 9, 2024, and the hearing was reset for December 20, 2025. Respondent requested a continuance on December 13, 2025, and the hearing was reset for January 2, 2025.
The hearing was held via Google Meet on January 2, 2025.
Investigator Peru testified in support of his findings. For the pavers (item 2): large gaps were present where additional pavers should have been, and sections were sinking, indicating insufficient compaction. For the drip line (item 3): at the initial inspection, Complainants said that Respondent broke the line when they relocated it during the paver-laying process, and they did not put it back underground; Respondents said they could fix it; Investigator Peru did not test the irrigation system for functionality due to Respondent’s representation. For the travertine (item 5): the travertine tiles had damage indicative of manufacturer defects and poor installation. For the crushed granite (item 6): areas of the yard had thin layers of rock.
Complainant’s witnesses testified that Respondent made multiple misrepresentations. They had access to the property. When it came time to hook up the hot tub, Respondent said they do not do electrical work, even though some electrical work was in the contract, and Complainant thought it was part of the agreement. Complainant hired two other contractors. One did the trenching, which was partially visible on page 51 of the hearing packet, along the wall and to the hot tub. The other did the electrical work in that trench. Complainant also hired someone to place the hot tub on the hot tub platform.
Respondent’s witness testified that Complainant accepted the work and paid for it in full. He stated that Respondent’s employees went to the property several times after the work was completed. He testified that no damage was present during the final walkthrough. He believed that other contractors damaged Respondent’s work, especially the travertine and pavers. He testified that the damage looked like after-the-fact damage to him. Respondent’s witness testified that the drip line was supposed to be above ground and that he did not expose it. Respondent’s witness also testified that Complainant had solar installed.
Respondent’s witness testified that Respondent tried going to the property three times.
Complainant testified that that Ms. Brewer and their daughter-in-law tested the gate code #4415, and it worked for them. Complainant testified that on June 5, 2024, Respondent called three times from an unidentified or blocked number, which they had not previously done, and they did not leave a voicemail. Complainant asserted that Respondent was being intentionally evasive so that the investigation would be dismissed for a fictitious denial of access.
Respondent provided two videos where the “#4415” and “4415#” were entered on the gate. Respondent testified that the videos were taken on June 5, 2024, demonstrating that the code did not, in fact, work. Complainant posited that the videos were taken at a later date.
Complainant argued that Respondent abandoned the work.
Both Complainant and Respondent accused the other party of inappropriate behavior, such as being hostile and intimidation.
Administrative notice was taken of Respondent’s prior License record on January 17, 2025. According to that record, Respondent’s License No. 335707 was active; there were seventeen open complaints, zero disciplined cases, and five resolved/settled cases 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. 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.”
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. Denial of access must be demonstrated by a preponderance of the evidence.
Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or materially impact the work or cost required to correct the deficiency. Subsequent work that has a de minimis impact on the issues alleged is not sufficient to establish the affirmative defense.
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 2, 3, 5, and 6.
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 2, 3, 5, and 6.
Respondent asserted that it was denied access. Respondent’s witness testified that Respondent was denied access because the gate code did not work. Respondent’s employee also sent a contemporaneous email to Investigator Peru in support of the denial of access; the email contained photographs, and is said to have contained videos, although the attachment of videos is not evident from the email provided. The two videos provided as Respondent’s Exhibits 16 and 17 do not have visible a date, and the available metadata, regarding when the file was created, was not illuminating.
Complainant asserted that Respondent had access to the property. Complainant provided email confirmation from the management company, stating the code and its effective dates. Complainant’s witness testified that she had tested the code, and it worked. She testified that her daughter-in-law tested the code, and it worked. She testified that she sent a contemporaneous email to Investigator Peru, stating that the code worked. Investigator Peru testified that he tested the code, and it worked.
The preponderance of the evidence failed to establish that the code did not work. Accordingly, the preponderance of the evidence failed to establish that Respondent was denied access.
Respondent asserted that Complainant damaged and modified its work. Respondent’s witness testified that the damage to the travertine tiles and depression in the pavers were not present until other contractors came to the property. He testified that in his opinion, the damage was consistent with damage caused by others. He testified that the trenching was a modification.
Investigator Peru testified that in his experience, the travertine tiles appeared to have manufacturer defects and installation damage; the pavers had large gaps and depressions, which were likely caused by insufficient compaction.
The Tribunal finds Investigator Peru’s testimony to be more credible regarding the likely cause of damage to the travertine and pavers. Accordingly, the preponderance of the evidence failed to establish modification or damage for Compliance Items 2, 3, and 4.
With regard to Compliance Item 6, the preponderance of the evidence established that modification occurred in a limited area, where trenching occurred between the electrical box to the hot tub. No other portions of the yard were impacted nor did the modification complicate corrective work. Given the nature of the complaint item, this modification was deemed de minimis outside of the impacted area. Accordingly, for Compliance Item 6, Respondent has met its burden for the space where trenching occurred, approximately one foot in width from the electrical box to the hot tub. Otherwise, the preponderance of the evidence failed to support modification.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for one day Respondent’s License No. 335707.
No civil penalty was deemed appropriate in this matter.
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, January 21, 2025.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Megan N. Schandle, Esq.
[email redacted]
LUMINOUS BUILDERS LLC
DBA: Luminous Energy
[email redacted]
John Peru
[email redacted]
Brewer Family
[email redacted]
By: OAH Staff