ALJDEC - Licensing

2024A-05543-CHC-ROC · Registrar of Contractors · 2025-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pedram Amani,

COMPLAINANT,

v.

Niksi Construction LLC,

License No. ROC 348546,

RESPONDENT.

No. 2024A-05543-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 11, 2025

APPEARANCES: Attorney William A. Kozub represented Pedram Amani. Attorney Nelson A.F. Mixon represented Niksi Construction LLC. Registrar Investigator Robert DiAlto appeared as a witness on behalf of the Registrar.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Registrar Notice of Hearing Packet (Packet); Complainant Exhibits 1 through 6, 19 and 20; Respondent Exhibits 7 through 18 and 21.

____________________________________________________________________

FINDINGS OF FACT

Niksi Construction LLC (Respondent) is the holder of License No. 348546, KB-1 Dual Building Contractor, issued by the Arizona Registrar of Contractors (Registrar or ROC) in November of 2023.

On May 13, 2024, the Registrar received a Licensed Complaint Form (Complaint) from Pedram Amani (Complainant) against Respondent alleging poor workmanship, unlicensed subcontractors, not receiving receipts, and outrageous charges. The project was a home remodel in Scottsdale, Arizona. Respondent’s work began in February 2023 and stopped in May 2024.

The Registrar assigned the Complaint to Investigator Robert Di Alto, who conducted a Jobsite Inspection on June 17, 2024. Inv. Di Alto reviewed thirteen (13) various items or issues that had been raised by Complainant at the inspection and documented three (3) of the issues through his notes and photographs.

On July 1, 2024, Complainant filed an addendum to the Complainant, alleging other specific construction issues.

On August 13, 2024, Inv. Di Alto issued a Written Directive (Directive) requiring that Respondent perform corrective work and notify the Investigator no later than August 30, 2024.

The Directive indicates the following, in pertinent part:

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 08/30/2024.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1-Poor roofing: the agreement was for the old roof to be removed completely and an entire new roof to be installed, and there is no clear evidence that the entire old roof was removed; the claimed new roof has already shown numerous cracks and many areas of uneven surfaces and potholes that collected significant amounts of water after each rain we had during the past few months. Also, poor coating was observed. Despite expressing numerous concerns as well as showing video footage taken from the roof after each rain, NIKSI declined to accept faulty and poor quality work and taking appropriate correction steps.

Investigator’s Observation: Verified. During this jobsite inspection, and in his 07/14/2024 email to the Complainant, the Respondent acknowledge that the roof was not complete and that they would fix any imperfections and apply final coatings. Also note that any humps or excessive ripples in the surface would not meet ROC minimum workmanship standards. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 3-Sliding doors in the living room and in the master bedrooms were installed incorrectly, resulting in poor opening and closing.

Investigator’s Observation: Verified. The Complainant stated that the doors were not what was specified, but failed to provide any supporting evidence to verify the allegation. However, the doors in both described locations appear to be difficult to operate, and light is visible under the bottom track in the master bedroom. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 12-Also, there are many other examples throughout the house so far that have been done poorly, for example, the water faucet in front of the garage door, and more.

Investigator’s Observation: Verified. The hose spigot located at the garage exterior is installed excessively close to the exterior wall finish, making service and ease of use difficult. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Due to efforts to coordinate some other construction items, Inv. Di Alto extended the Directive deadline two times, the final date being October 25, 2024.

Thereafter, Inv. Di Alto forwarded the matter to ROC legal Department.

On November 4, 2024, the ROC issued a Citation against Respondent charging the following possible violations:

Charge :1 A.R.S. § 32-1154(A)(3) - R4-9-108(A)

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.

Charge :2 A.R.S. § 32-1154(A)(8) – A.R.S. § 32-1158

Failure in any material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

Charge :3 A.R.S. § 32-1154(A)(22)

Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. . . .

On November 19, 2024, Respondent filed an Answer to the Citation, denying all allegations. As to the roof, Respondent specifically noted that it could not be repaired until October 30, 2024, alleging, in defense to the Citation, that Complainant had “denied” access until other work was Complaint and positing, therefore, the Complaint should be dismissed. Respondent also posited that Complainant had filed to cooperate to allow Respondent access, to schedule other work so as to allow Respondent access, to provide specific information on the items, and to refuse Respondent’s owner to come to the site to ensure the items were appropriately addressed.

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

On December 9, 2024, the Registrar issued a Notice of Hearing setting the matter to convene on January 14, 2025 and the Office of Administrative Hearings issued an ORDER advising the parties about the virtual hearing and specifying how to connect to the virtual session. At the time of the scheduled hearing, the Tribunal was unable to connect with Inv. Di Alto and both parties requested the hearing be reset to afford the appearance by Inv. Di Alto. After that continuance, the hearing convened on March 11, 2025.

At the time of the hearing, only Item #3 remained in dispute.

At hearing, Inv. Di Alto testified consistent with the findings contained in his Jobsite Inspection notes and Directive. Inv. Di Alto found that the doors were difficult to open and that there was visible light under the track at the bottom of master bedroom door.

Inv. Di Alto was unable to give an opinion on the current state of the doors; there was not a pre-hearing inspection.

Neither party requested Inv. Di Alto make a pre-hearing inspection.

Respondent’s qualifying party, Sina Sabeti Shishavan, testified that Complainant did not allow him to come to the jobsite, mentioning “yelling” at the 2nd jobsite, and, therefore, he sent Ernest Ortiz to make the repairs. Mr. Sabeti also mentioned that he had authorized his attorney to reach out to see if Complainant would allow him to come and “inspect” but that he had not been allowed to; he referenced a February 5, 2025 email between attorneys.

Respondent indicated that the doors were fixed on August 30, 2024. Mr. Ortiz testified that he cleaned out the rails and replaced the rubber gaskets; he took videos of the doors operating. Mr. Ortiz testified that he cleaned the doors and that there was no dirt or other substances on the doors inside or out when he was done. Mr. Ortiz indicated that each panel of the large folding doors weighed 35 pounds but that he was able to open them with “not a lot of force or pressure.”

Complainant believed that the framing within which the doors were installed was not aligned and that the issue with the doors not functioning properly was poor installation. Complainant’s position is that the doors are in the same condition as when he filed the Complaint. Complainant indicated that, due to the misalignment and friction, the doors were chewing up the rubber gaskets even after Respondent’s repairs. Complainant indicated that there has been very little use of the doors because the home is still a construction site. Complainant’s photographs document gaps and outside light coming in at areas above the doors.

Neither party provided testimony regarding the ROC-cited alleged violation of Ariz. Rev. Stat. § 32-1154(A)(8) – Ariz. Rev. Stat. § 32-1158.

Since the time of the hearing, Complainant has not notified the Tribunal that the parties have come to any settlement.

Administrative notice is taken of Respondent’s license history and status with the Registrar on May 1, 2025. Respondent’s ROC license record reflects that Respondent’s KB-1 Dual Building Contractor license, License No. 348546, is active, with the instant case being the only open case regarding the license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 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. See 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. Based on the evidence in the hearing record, there is no evidence that Complainant failed to allow access to Respondent for repairs during the extended Directive periods.

9. Based on the evidence in the hearing record, the Administrative Law Judge concludes that each of the Investigator-determined workmanship issues had existed at the time of the jobsite inspection and were reflected in the Directive. Further, the Administrative Law Judge concludes that, as of the administrative hearing, Item #3 was not yet corrected pursuant to the Directive and, thus, as cited by the ROC, at this project Respondent was in violation of the following Arizona contracting laws and rules:

Ariz. Rev. Stat. § 32-1154(A)(3) – A.A.C. R4-9-108(A)

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.

Ariz. Rev. Stat. § 32-1154(A)(22) Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s ROC License No. 348546 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E) for the failure to have corrected the Item #3.

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s final order, the Registrar shall 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 Ariz. Rev. Stat. § 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 11, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Robert Di alto

[email redacted]

William A. Kozub, Esq.

The Kozub Law Group PLC

[email redacted]

[email redacted]

Nelson A. F. Mixon, Esq.

Holden Willits PLC

[email redacted]

[email redacted]

By: OAH Staff