ALJDEC - Licensing
2024A-05433-CHC-ROC · Registrar of Contractors · 2025-05-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nicole Pinazza
COMPLAINANT
v.
J P Kush Construction LLC
License No. ROC 247343,
RESPONDENT.
No. 2024A-05433-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 18, 2025
APPEARANCES: Nicole Pinazza (hereinafter “Complainant”) appeared on behalf of herself. Jason Kush appeared on behalf of J P Kush Construction, LLC (hereinafter “Respondent”.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On September 26, 2024, the Registrar of Contractors, (hereinafter
“Registrar” or “ROC”), issued a Notice of Hearing setting the above-captioned matter for hearing on November 8, 2024, by the Office of Administrative Hearings in Phoenix, Arizona. The hearing was continued to April 18, 2025.
Respondent holds license number 247343 issued by the ROC.
The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Respondent may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3) and (22); Arizona Administrative Code (hereinafter “A.A.C.”) R4-9-108(A).
4. Complainant hired Respondent to build a new home in the amount of $2,324,468.08. Complainant paid Respondent in full.
5. Respondent last worked on the home on May 12, 2023.
6. On or about May 24, 2024, Complainant filed a complaint with the ROC alleging poor work on the part of Respondent.
7. On or about May 22, 2024, ROC Investigator Mike Wiskow conducted a job-site inspection.
8. On July 19, 2024, the Registrar issued a Directive directing Respondent to complete the following complaint items by appropriate means, no later August 9, 2024.:
..........................................................................................
Complaint Item: 1 - - Incorrect door jambs and finish of 18 interior doors.
Investigator’s Observation: Confirmed. The door jamb to sheetrock finish is not
acceptable. On some doors the sheetrock butts up to the back of the door jamb and is caulked and painted. The line created by this intersection is visible. This detail is visually unappealing and unacceptable. On other doors the sheetrock intersection to the back of the doorjamb has created a sheetrock reveal where the end of the sheetrock was caulked and painted. This detail is present on several doors. The reveals are uneven. This is unacceptable. In addition, other doors set in 2x6 walls have a jamb intended for a 2x4 wall. The finish at these areas creates a stepped look at the jamb and is also unacceptable. Doors set in 2x6 walls should have the appropriately sized 2x6 jamb.
All doors interior and exterior should have an appropriate finish in accordance with industry standards. Simply butting sheetrock up to the back of a jamb and painting it is unacceptable as the profile is visible.
All doors should have the appropriate jamb size according to the wall thickness
present. A 2x4 door jamb in a 2x6 wall is unacceptable.
All doors throughout the home should have a consistent door jamb to sheetrock finish. Currently some are smooth and some have inconsistent reveals. This is unacceptable. Contractor should verify each unacceptable door according to the aforementioned deficiencies and repair by appropriate means.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 2 - - Drywall - poor finish, wavy walls, lines, no sanding, mesh at bottom showing. Installed before interior door frames
Investigator’s Observation: Confirmed. There are wavy spots, lines and pinholes on some of the walls throughout the home. Sheetrock finish should be smooth without lines and pinholes.
Contractor should verify these areas and repair by appropriate means. Appropriate paint touch-up is included in this directive.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 3 - - Interior paint - poorly done (spots missing) with
drywall/door repair whole house will need repainted.
Investigator’s Observation: See Allegation number 2. Paint will undoubtedly need to be done once sheetrock repairs are made.
Complaint Item: 5 - Door to Laundry Room is improperly centered. Latch side of
doorway has approximately 1/8" jamb exposed.
Investigator’s Observation: Confirmed. The door to the laundry room is visually
unappealing as there is only 1/8' of door jamb showing on the right (latch side). An appropriately sized door should be installed so that the jamb exposure on both side of the door are consistent.
Contractor should repair by appropriate means.
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. A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
Complaint Item: 6 - Latch at door to laundry room hits the wall because there is
minimal door jamb.
Investigator’s Observation: Confirmed. The door latch currently rubs on the wall.
There should be an appropriately sized door at this location so there is ample room for the latch to hit only the strike plate and not the wall.
Contractor should repair by appropriate means.
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. A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item: 4 - Builder installed standard rather than kerf doors.
Investigator’s Observation: There is no evidence that the builder specified kerf doors. Although the present finish is unacceptable and need to be repaired, specifically a kerf detail was not in contracts or plans and is not required.
..........................................................................................
9. Although Investigator Wiskow extended the deadline to comply with the Directive to August 22, 2204, Respondent did not correct the Directive items.
10. On July 18, 2024, the ROC issued a Citation against Respondent’s license for alleged violations of A.R.S. section 32-1154(A)(3) and (22); A.A.C. R4-9-108(A).
11. Respondent filed a timely answer to the Citation.
12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
13. At hearing, Complainant testified on behalf of herself and presented the testimony of Josh Burgin and Jorge Miranda. Jason Kush, Respondent’s qualifying party, testified on behalf of Respondent.
14. Investigator Wiskow testified consistently with job-site inspection and compliance inspection notes.
15. Complainant explained that Respondent performed poor work during the construction project.
16. Mr. Kush explained that during the timeframe for compliance under the Directive, he offered to repair the Directive items by installing casings on the doors. Complainant did not allow Mr. Kush to install the casings. Complainant contended that she has a modern home and casings are not appropriate. Mr. Kush contended that he has installed casings in many contemporary homes.
CONCLUSIONS OF LAW
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. Arizona Administrative Code R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” A.R.S. § 41-1092.07(G)(3).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).
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).
A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
The preponderance of the evidence shows that Complainant denied Respondent reasonable access to her home to correct the items listed in the Directive. Contractors must be provided with the opportunity to correct the Directive items in the manner that he contractor deems appropriate. It is undisputed that Respondent offered to correct the Directive items through the installation of casings, but Respondent did not allow Respondent to do so. As a result, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108(A), and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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, May 8, 2025.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Nicole Pinazza
[email redacted]
Jason Kush
J P Kush Construction LLC
[email redacted]
By: OAH Staff