ALJDEC - Licensing

2024A-05319-CHC-ROC · Registrar of Contractors · 2025-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristen Hahn ,

COMPLAINANT

928 Construction, LLC

License No. ROC 339617,

RESPONDENT

No. 2024A-05319-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 10, 2024 and February 6, 2025

APPEARANCES: Kristen Hahn, Complainant, appeared on her own behalf. Megan Schandle, Esq. representing Respondent with witness Adam Cook. Daniel Otero, Investigator, on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Notice of Hearing Amended Packet (“Packet”), Respondent’s Exhibits 1 – 18.

FINDINGS OF FACT

928 Construction LLC (“Respondent”) is the holder of License No. ROC 339617 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about March 9, 2023, Kristen Hahn (“Complainant”) entered into a contract with Respondent for the construction of a two-unit duplex residential project. This project consisted of two, separate build from the ground up housing units. The units shared a property line, had separate driveways, and each unit had its own garage. The units were addressed as 1702 and 1706 Echo Canyon Drive in Clarkdale, Arizona. The total amount of the contract was $500,000 and the total amount paid to Respondent was $634,000. The work on the project started in March 2023 and the work was completed on November 28, 2023, with a tenant move-in date on or around January 1, 2024.

On or about May 7, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Daniel Otero. A jobsite inspection was scheduled and rescheduled and ultimately took place on July 17, 2024, with both parties present. After the jobsite inspection, on July 30, 2024, Investigator Otero issued a Written Directive to Respondent that provided 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 Friday, August 16, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: Door frames out of alignment – 1702 and 1706

Investigator’s Observation: Verified. At the time of the Inspection it was demonstrated in both 1702 & 1706 the fire doors, entry doors and doors throughout the duplex were not working as they should with binding and rubbing on top and bottom corners when in use. This is a service within the first year of occupancy the contractor is responsible for. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: Kitchen Cabinet doors, drawers out of alignment – 1702 and 1706

Investigator’s Observation: Verified. At the time of the Inspection it was observed and demonstrated in 1702 & 1706 the cabinets need adjustments throughout. Misaligned doors in multiple directions, level and plumb. Inside the drawers there were many blow out areas from where the handles were drilled leaving splintered wood accessible for bodily harm. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: Drywall patch/texture at exterior ceiling behind front porch beam between units – poor workmanship

Investigator’s Observation: Verified. At the time of the Inspection it was observed on both front and rear of the duplex between both units behind the beams there were unsightly and or incomplete drywall patches. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: The clearance of the toilets in the master bathrooms does not meet the minimum 15” Code requirement

Investigator’s Observation: Verified. At the time of the Inspection it was observed and demonstrated the toilet flange was installed in the incorrect location per the plan, therefore the toilet did not have the correct clearance side to side. This placement is not common in the industry. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

. . . .

Complaint Item: There is an extension outlet from the 200-amp electrical service panel that was installed to plug in a jobsite trailer of

Investigator’s Observation: Verified. At the time of the Inspection of 1706 it was observed there was an additional outlet placed below the main electrical panel that was added after later in the building process and was not on the plans or approved by the owner of the property. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

. . . .

Complaint Item: The dishwasher was never secured (screwed) in place. The entire appliance pulls out from the wall when the dishwasher is

Investigator’s Observation: Verified. At the time of the Inspection in 1702 it was demonstrated was not fastened into place and there was no indication that it was at any time secured. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: The lock to the garage door is different from the master key we received for the homes. The locks in both garages need Investigator’s Observations: Verified. At the time of the Inspection it was observed and agreed by both parties the locks on the fire doors were keyed different from the rest of the doors in the house in 1702 & 1706 of the duplex. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: The backdoor slider does not slide open the way it should.

Investigator’s Observation: Verified. At the time of the Inspection it was demonstrated the rear sliding glass door was difficult to open and did not fully open without struggle. This is a service within the first year of occupancy. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: The garage door in this home was not installed properly. It is only a matter of time until it falls the way 1706 did

Investigator’s Observation: Verified. At the time of the Inspection it was observed the garage door in 1702 was installed identical to the door in 1706 that had to be repaired by others, since the mounting brackets for the motor that opens and closes the roll up garage had half the motor bracket screwed to a solid anchor point, and the other half screwed into drywall with no backing leaving damage and the reassembly of the roll up system to function properly. Since 1706 has been repaired by others it is only 1702 that would required to ensure the garage door opener has been installed correctly. The Respondent will need to correct this by the appropriate means.

. . . .

Complaint Item: The seal has failed or was not installed around the garage doors in both these homes.

Investigator’s Observation: Verified. At the time of the Inspection it was observed the weather seals around both garage doors on the top and sides of the doors connected to the house were not installed correctly. They were cut short with large gaps in the corners as well as not enough fasteners, this is evident with bows in the weather stripping. The Respondent will need to correct this by the appropriate means.

. . . .

All errors in original.

Following the issuance of the Written Directive, Respondent performed corrective work on the project. After the deadline in the directive expired, Investigator Otero was notified that work was performed. Investigator Otero scheduled a compliance inspection on September 17, 2024. Both parties attended the compliance inspection and the Investigator’s notes provided as follows:

Compliance Findings:

Complaint Item: Door frames out of alignment – 1702 and 1706

Compliance Observation: At the time of the Compliance Inspection it was observed, doors that were not adjusted properly and damaged caused by the adjustment of the fire door in Unit 1706 while it binds when being closed. There is also a door in the master closet of Unit 1706 that also binds when closing it.

NOT CORRECTED

. . . .

Complaint Item: Kitchen Cabinet doors, drawers out of alignment – 1702 and 1706

Compliance Observation: At the time of the compliance inspection it was observed, there was one cabinet door in Unit 1706 that is warped, the door is the last door in the upper cabinets over the countertop where the rooms transition from kitchen to living room.

NOT CORRECTED

. . . .

Complaint Item: Drywall patch/texture at exterior ceiling behind front porch beam between units – poor workmanship

Compliance Observation: At the time of the compliance inspection it was observed, the front area behind the beam was attempted to repair but not completed and on the rear patio the drywall was never touched. The complaint states only the front porch ceiling but in my inspection it was noted both front and rear needed attention.

NOT CORRECTED

. . . .

Complaint Item: The clearance of the toilets in the master bathrooms does not meet the minimum 15” Code requirement

Compliance Observation: At the time of the compliance inspection it was observed, both units had issues with a code violation with the toilets not having the proper clearance that is required. This item was taken care of and looks great!

CORRECTED

. . . .

Complaint Item: There is an extension outlet from the 200-amp electrical service panel that was installed to plug in a jobsite trailer of

Compliance Observation: At the time of the compliance inspection it was observed, the outlet was removed and the necessary steps were taken to ensure the main panel is safe.

CORRECTED

. . . .

Complaint Item: The dishwasher was never secured (screwed) in place. The entire appliance pulls out from the wall when the dishwasher is

Compliance Observation: At the time of the compliance inspection it was observed, this item was completed.

CORRECTED

. . . .

Compliance Observation: At the time of the compliance inspection it was observed, all of the keyed locks were the same in 1702, 1706 did not have the same key for the keyed locks.

NOT CORRECTED

. . . .

Complaint Item: The backdoor slider does not slide open the way it should.

Compliance Observation: At the time of the compliance inspection it was observed, the Sliding glass door in unit 1702 moves much more freely that unit 1706 and the doors are the same therefore should operate similar to one another. This is not the case.

NOT CORRECTED

. . . .

Complaint Item: The garage door in this home was not installed properly. It is only a matter of time until it falls the way 1706 did

Compliance Observation: At the time of the compliance inspection it was observed, no repairs were done to 1702 garage door and it was stated by the respondent that he had the paperwork to confirm the installation was correct. This information was not provided to the investigator as of 9/20/2024 @ 3:42P.M.

NOT CORRECTED

. . . .

Complaint Item: The seal has failed or was not installed around the garage doors in both these homes.

Compliance Observation: At the time of the compliance inspection it was observed, the weather stripping on the outside of the large garage door was poorly installed with large gaps between the top horizontal piece and both vertical pieces on both sides. Initially there were areas of separation along the trim pieces along with the gaps, now the separation was resolved but the gaps were not repaired.

NOT CORRECTED

. . . .

Note:

Please review the complaint items listed above. If any of the items have not been corrected this complaint will be forwarded to the Registrar’s legal department and a citation may be issued.

If all items are corrected after receipt of this letter, please notify the Registrar’s legal department.

All errors in original.

No evidence was presented that further corrective work was performed by Respondent after the compliance inspection. As such, on October 4, 2024, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

On October 15, 2024, Respondent submitted a Written Answer to the Citation whereby it denied all charges listed in the Citation and requested the matter be referred to the Office of Administrative Hearings (“OAH”), an independent state agency.

On October 24, 2024, the Registrar sent a Notice of Hearing to the parties for a hearing set on December 10, 2024 at 9:00am. The hearing took place on December 10, 2024, and for administrative reasons, the hearing was set for a further hearing on February 6, 2025.

Hearing Evidence

Investigator Otero testified that he granted Respondent additional time and pushed back the deadline date in the Written Directive, particularly for the work that needed to be performed on the clearance of the toilet which was a labor intensive item.

Complainant testified that tenants moved into both of the duplex units at the beginning of 2024. Complainant testified that she began receiving complaints from the tenants and that is when she realized there were significant issues in the units that needed to be addressed and this was what led her to file the workmanship complaint. Complainant testified that the garage door in unit 1706 fell and she hired an outside company to fix it. Complainant further testified that she reached out to Mr. Adam Cook by email to fix the garage at unit 1706, but she got no response.

Mr. Adam Cook, on behalf of Respondent, testified that he did not recall having received any communication from Complainant to fix workmanship issues at the duplexes from December 1, 2023, through July 2024. When Respondent visited the units again, it was because Complainant filed a complaint with the Registrar and Mr. Cook participated in the Jobsite Inspection on July 17, 2024. Mr. Cook testified that Respondent was not given the opportunity to make any repairs to the garage.

Respondent argued as a defense that Complainant abused the Registrar’s complaint process and that this matter should be dismissed. Mr. Cook presented evidence to establish that Respondent was terminated from a neighboring project by Complainant in December 2023 and the police were called on them for trespassing. Respondent presented evidence that Registrar Complaint No. 2024-05319 filed by Complainant dealt with trespassing and the police became involved, which was outside the Registrar’s jurisdiction and the Registrar dismissed the Complaint. Respondent presented additional evidence that Registrar Complaint No. 2023-14620 filed by Complainant against Respondent was also dismissed because the Registrar could not accept a failure to pay violation filing on behalf of any subcontractors. Mr. Cook testified to his belief that four subcontractors filed failure to pay complaints against Respondent with the Registrar because of Complainant. Complainant testified that the subcontractors came to her about not getting paid by Respondent and Complainant provided them with the Registrar’s information but denied it was her idea for them to file a complaint.

Administrative notice is taken of Respondent’s prior License record on February 6, 2025. Such prior License record reflected that Respondent’s License No. ROC 339617 was first issued on July 22, 2022, and is Active. Such prior License record also reflected that there was one open complaint (this current matter) and four resolved/settled complaints 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. A preponderance of the evidence means “proof which leads the [trier of fact] to find that the existence of the contested fact is more probable than its nonexistence.”

In this case, Respondent argued that Complainant engaged in an abuse of the Registrar’s administrative process, and because of that abuse, this process had been compromised and Complainant’s complaint should be dismissed. Respondent presented the Tribunal with the unfortunate timeline of events; however, the Registrar did not dismiss the current complaint because there were legitimate workmanship issues identified and Respondent corrected a few items by the time the compliance inspection occurred. Therefore, this Administrative Law Judge agrees with the Registrar that this workmanship complaint should not have been dismissed for an abuse of the Registrar’s administrative process.

The evidence reflected that the relationship between Complainant and Mr. Cook had completely broken down. The fact is not lost to this Administrative Law Judge that tenants occupied the duplex units for months before Respondent could get back into the units. There are a few items on the compliance inspection report that were not corrected despite the presence of tenants. Hence, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project, and all of the items in the compliance inspection, in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

Furthermore, the evidence established that Respondent failed to complete all of the corrective work following the Written Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. ROC 339617 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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 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)(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, February 26, 2025.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Kristen Hahn

PO Box 4124

Sedona, AZ 86340

[email redacted]

Megan N. Schandle, Esq.

LANG THAL KING & HANSON PC

6730 N Scottsdale Rd

Scottsdale, AZ 85253

[email redacted]

928 Construction, LLC

3266 S Little Dr

Flagstaff, AZ 86005

[email redacted]

Daniel Otero

[email redacted]

By: OAH Staff