ALJDEC - Licensing

2024A-06011-CHC-ROC · Registrar of Contractors · 2024-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Connor Cornils,

COMPLAINANT,

v.

BACLARK CONSTRUCTION, LLC

License No. ROC 340635,

RESPONDENT,

No. 2024A-06011-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27, 2024

APPEARANCES: Complainant Connor Cornils appeared on his own behalf, with his wife, Christina Cornils. Brandon Clark appeared on behalf of Respondent Baclark Construction, LLC. Arizona Registrar of Contractors Investigator Doug Barrett appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record.

FINDINGS OF FACT

Baclark Construction, LLC (“Respondent”) is the holder of License Number 340635 issued by the Arizona Registrar of Contractors (“Registrar”). Brandon Clark is Respondent’s Qualifying Party and Manager.

On or about February 7, 2024, Jerri Cornils contracted with Respondent for Respondent to replace the retaining walls and window wells at Complainant’s home. The contract price was $33,794.75. Respondent has been paid approximately $21,000.00. Jerri Cornils is the mother of Connor Cornils (“Complainant”). Complainant and his wife, Christina Cornils, are renting to own the home.

On or about May 25, 2024, the Registrar received a Complaint against Respondent from Complainant essentially alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Doug Barrett. After a June 6, 2024 Jobsite Inspection, that Respondent did not attend, Investigator Barrett issued a Written Directive to Respondent, dated June 6, 2024, 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, June 28, 2024.

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

Complaint Item: 1 - AC disconnected, water disconnected, gas disconnected, street filled with piles of excavated dirt, damage to property. Investigator’s Observation: Verified. I observed the left side of the home where dirt has been excavated down to below the basement windows. I observed rebar being installed during this inspection. I observed the AC, propane, and water for irrigation disconnected. The respondent did not pass the rebar/footing inspection from the City of Chandler to start pouring concrete. The contractor should complete the project (replacement of the basement egress wells), make corrections per the City of Chandler Building Official, and reconnect all utilities by appropriate means per the contract and approved plans.

On July 2, 2024, Investigator Barrett conducted a Compliance Inspection and noted “[n]o work has been completed per the written directive.”

Thereafter, Investigator Barrett forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).

The scope of Respondent’s work was to remedy the window wells that were caving in and the retaining walls that were failing. The scope of work required major excavation that began on March 12, 2024, and required that the HVAC system be disconnected, as well as water and propane to the home. Pursuant to the terms of the parties’ contract, the project was to be completed by March 7, 2024. At the time of the project, Complainant had his newborn and an elderly woman residing in the home.

Investigator Barrett testified consistently with the findings contained in the Written Directive. Investigator Barrett testified that the scope of Respondent’s work should have only taken a few weeks, that Respondent had not passed inspection by the City of Chandler as of May 28, 2024, and that Complainant and his family were left without air conditioning and utilities for months, particularly the summer months.

Complainant testified that he had no communication with Respondent and no progress on the project after excavation, notwithstanding repeated attempts to contact Respondent.

Complainant further testified that after the Jobsite Inspection, on June 7, 2024, Respondent attempted to re-connect the air conditioning system and damaged it in the process causing a “catastrophic failure of the system.” After Respondent damaged the system, Complainant hired two HVAC contractors to inspect the system and both advised that the entire system needed to be replaced at a cost of between $15,000.00 and $16,000.00. Complainant was compelled to purchase temporary cooling units in order to survive the summer months as he and his family were left without air conditioning for seven months. Complainant and his wife testified that even with the temporary cooling units and fans, the house never cooled to a comfortable level and their newborn’s sleep was significantly impacted.

Brandon Clark, Respondent’s owner, testified that he dispatched “licensed air conditioning techs” to re-connect the air conditioning, and “does not understand how the damage was possible.” Mr. Clark asserted that the excavation took longer than he anticipated because he hired a subcontractor to perform the work, he paid the subcontractor, and the subcontractor “never showed up.”

Mr. Clark testified that Respondent began its work within one week of the execution of the contract which was February 7, 2024. However, excavation did not begin until March 12, 2024, and the completion date of the project, pursuant to the terms of the parties’ contract was March 7, 2024. Mr. Clark contended that it “took that long to get the right equipment to the property.” Mr. Clark testified that the reason he waited to work on the air conditioning until after the Registrar was involved was because it “slipped his mind because he had multiple projects going on.”

Mr. Clark testified that he “takes full responsibility for [Respondent’s] actions and does not dispute anything.” Mr. Clark acknowledged the lack of air conditioning and that the project was not completed by the date specified in the contract.

Administrative notice is taken of Respondent’s prior License record on October 9, 2024. Such prior License record reflects that Respondent’s License Number 340635 was first issued on September 8, 2022, and is suspended for non-renewal. Such prior License record also reflects that there are two open complaints, including the instant Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

The Registrar’s Mission Statement as set forth on the public website is: “Protect the health, safety and welfare of the public through a regulatory system designed to promote quality construction by Arizona Contractors.”

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 is such proof as convinces the trier of fact that the contention is more probably true than not.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

The uncontroverted evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. The fact that Respondent left Complainant and his family without air conditioning and utilities for many months during the summer in Arizona’s climate, is unconscionable. The fact that such life threatening conditions “slipped [Mr. Clark’s] mind because he had multiple projects going on” is an egregious omission. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued and acknowledged such. Respondent did not establish any valid justification for its failure to comply with the Written Directive. Therefore, Complainant 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).

The Administrative Law Judge concludes based upon the appalling facts presented herein and the Registrar’s Mission Statement, that in order to protect the citizens of the State of Arizona from a similar fate as suffered by Complainant and his family, that Respondent’s license should be revoked.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Number 340635.

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 10, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Doug Barrett

[email redacted]

BACLARK CONSTRUCTION, LLC

[email redacted]

Connor Cornils

[email redacted]

By: OAH Staff