ALJDEC - Licensing

2024A-06942-CHC-ROC · Registrar of Contractors · 2025-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jonathan Paturalski ,

COMPLAINANT

v.

Grey Colt Construction LLC

License No. ROC 305719,

RESPONDENT

No. 2024A-06942-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2025 at 1:00pm

APPEARANCES: Jonathan Paturalski, Complainant, appeared on his own behalf; Miguel Hinojosa on behalf of Respondent; Gregory Johndrow, Arizona Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors Notice of Hearing Packet (“Packet”)

FINDINGS OF FACT

Grey Colt Construction, LLC (“Respondent”) is the holder of License No. ROC 305719 issued by the Arizona Registrar of Contractors (“Registrar”) on July 1, 2016.

On or about February 7, 2024, Jonathan Paturalski (“Complainant”) entered into a contract with Respondent for, among other things, a residential, interior remodel project located in Tucson, Arizona. The contracted amount for the project was $48,575.00. The total amount paid for the project was $50,290.91 due to additional modifications and/or items.

On or about June 18, 2024, Complainant filed a Licensed Complaint Form (“Complaint”) with the Registrar alleging poor work with respect to the project.

After receiving the Complaint, Registrar Investigator Gregory Johndrow scheduled a jobsite inspection that was conducted on September 9, 2024 at 9:00am with both parties present.

Following the jobsite inspection, On October 1, 2024, Investigator Johndrow issued a Written Directive from the Registrar (“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 Wednesday, October 23, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Complaint Item 2: “hall bath was not properly sealed for water proofing behind shower tile: all screws exposed and seems not sealed at”

Investigator’s Observations: Verified.

The complainant removed a section of wall tile that exposed conditions showing the manufactures installation instruction for the DensShield Tile backer have not been followed. The fasteners have been countersunk past the coated surface. Flexible sealant was not used between the joints of the tile backer board. 2” mesh tape embedded in a skim coat of tile setting material was not used

. . . .

Complaint Item 4: “poor grout job on shower wall tile. some completely open areas with no grout and some with sub par grout work”

Investigator’s Observations: Verified.

There are void and holes in several locations of the grout on the shower walls in the hall bath. The application of the grout has an irregular appearance on the upper section of the wall behind the toilet, there is a color variation in the grout of this location.

. . . .

Complaint Item 5: “leaking water from glass shower panel, where wall meets tile”

Investigator’s Observations: Verified.

Water leaks around the glass shower panel next to the toilet.

. . . .

Complaint Item 6: “the grout in the hall bathroom is different colors due to improper mixing of water to grout and three separate grouting attempts. The light grey grout turns to powder when scratched with my fingernail, and has visible areas where grout has air bubbles and/or grout is completely missing.”

Investigator’s Observations: Verified.

The complainant’s described conditions are present and were observed in multiple areas of the hall bathroom.

. . . .

Complaint Item 7: “grout on the grey rectangular tile in both bathrooms was stained but not sealed, leaving a rubbery substance that is peeling and discolored due to foot traffic.”

Investigator’s Observations: Verified.

The grout stain product used for the floor tile in both bathrooms in peeling/flaking to some degree in multiple locations. The product has stained the tile in the hall bath where the residue was not completely cleaned off of the tile surface. There is discoloring of the grout in these locations.

. . . .

Complaint Item 8: “Grey Colt construction neglected to follow manufacturer instructions for the stone shower Floor Installation. Namely there is no water proofing around the edges, which was provided, as well as detailed instructions”

Investigator’s Observations: Verified.

The tile flange for the shower base, was not installed, as required by the manufacture.

. . . .

Complaint Item 9: “the primary bath exhaust fan is not connected to ANY exhaust venting rendering it useless.”

Investigator’s Observations: Verified.

The exhaust fan has not been properly vented to the exterior.

. . . .

Complaint Item 10: “approximately 3 feet of ducting was removed from the primary bathroom, we did not request this action. In addition, no ducting was replaced leaving a rough hole in the wall on the shower side and a larger hole on the furnace closet side, which is exposing the tile backing dry wall and the furnace room to shower moisture. If a permit was needed none were acquired to alter this ducting.”

Investigator’s Observations: Verified.

The ducting modification performed for the primary bathroom is not properly sealed. The connection is leaking air flow into the wall cavity and the FAU closet.

. . . .

Complaint Item 11: “Grey Colt Construction didn’t follow manufacturer instruction in the installation of the Philips hue lights on the living room ceiling and in the blue and white colored bedroom. Grey Colt construction some how glued the lights to the ceiling which is NOT how they are intended to be installed.”

Investigator’s Observations: Verified.

The ceiling lights have been caulked to the ceiling hindering the ability to access electrical connections for the fixture and not meeting industry standards.

. . . .

Complaint Item 12: “There is strong photographic evidence that the moisture board may not be Densshield and/or was not installed following manufacture instructions. The screws have no sealant and the moisture board seams have no mesh taping or sealant.”

Investigator’s Observations: Verified.

This is a duplicate of complaint item 2.

. . . .

Complaint Item 13: “the primary bath has hot and cold water reversed”

Investigator’s Observations: Verified.

The hot and cold water are reversed on the mixing valve.

. . . .

Items Not Requiring Correction

The following complaint items require no action by the Respondent: Complaint Items 1, 3, 14 and 15.

All errors in original.

A second jobsite inspection was scheduled on September 24, 2024 at 9:00am which covered Complaint Item #2 from the Directive. Complainant was present at this second inspection.

In tandem with the issuance of the Directive, the Registrar sent three separate warning letters to Respondent regarding specific charges relating to contracting beyond the scope of its license, contract requirements, and lack of permit.

On October 22, 2024, one day prior to the deadline, Respondent called Investigator Johndrow about the Directive and told him “I need more time.” Investigator Johndrow did not consider an extension due to a lack of good faith effort to comply with the Directive. After the deadline in the Directive expired, on October 24, 2024, Investigator Johndrow was notified by Complainant that no corrective work had been performed.

On October 25, 2024, the Registrar issued a Citation against Respondent, charging possible violations of:

Ariz. Rev. Stat. § 32-1154(A)(2)(a);

Ariz. Rev. Stat. § 32-1154(A)(2)(b);

Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and 108(B);

Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158;

Ariz. Rev. Stat. § 32-1154(A)(16); and

Ariz. Rev. Stat. § 32-1154(A)(22).

HEARING EVIDENCE

Investigator Johndrow testified to the matters regarding Respondent working beyond the scope of its license, namely the Heating, Ventilation and Air Conditioning (“HVAC”); plumbing and electrical work. Respondent’s License No. ROC 305719 is a B-3: General Residential, General Remodeling and Repair Contractor which states per the Registrar, “This classification allows the licensee to remodel and repair an existing residential structure or appurtenance except for electrical, plumbing, mechanical, boilers, swimming pools, spas and water wells, which must be subcontracted to an appropriately licensed contractor.”

Miguel Hinojosa testified that the plumbing part of the project, including the shower drain, shower fixtures, angle stops, water supply lines for sinks and faucets, and the install of toilets, was subcontracted out to “116 Plumbing” LLC which had a License No. ROC 345239. Mr. Hinojosa testified that in regards to electrical work on the project they “checked out outlets and light fixtures.” In regards to the HVAC work on the project, Mr. Hinojosa testified “this was done poorly.”

Mr. Hinojosa testified that there were items that his “guys missed,” in particular, items that concerned the shower with not properly installing the shower liner. Mr. Hinojosa testified, “I take full responsibility,” regarding that part of the project. In addition, the Citation charge in relation to the company’s contract, Mr. Hinojosa testified that the company’s standard contract went from 2 pages to 24 pages after this Complaint was filed with the Registrar.

Mr. Hinojosa further testified that he “lost track of time.” After the October 22, 2024 conversation Mr. Hinojosa had with Investigator Johndrow, he reiterated by email on November 8, 2024, “I will need more time as we need to look at work so it can be drawn up and submitted for permits. The amount of time that the city of Tucson takes to approve permit is totally out of my control. As of this date I haven’t heard back from him [Complainant]. Please advise on what can be done to extend the amount of time needed.” Mr. Hinojosa reiterated at the hearing that he misunderstood the Directive in that he believed the deadline date was when he needed to respond to the Registrar not that he had to have all the work completed by that date. Mr. Hinojosa testified after further review, he came to understand that all the work needed to be done by the deadline.

Complainant testified that prior to the issuance of the Directive he was willing to allow Respondent onto the property to fix any work. However, during this period there were text messages between Complainant and Mr. Hinojosa where Respondent belittled Complainant. Mr. Hinojosa apologized at the hearing for some of those communications. Due to those communications, after the Directive deadline date, Complainant testified that he had no further obligation to work with Respondent. Hence, there was no further communication between Complainant and Respondent after the Directive deadline date.

Administrative notice is taken of Respondent’s prior License record on January 6, 2025. Such prior License record reflects that Respondent’s License No. ROC 305719 was first issued on July 1, 2016, and is Active. Such prior License record also reflects that there is one open complaint which is the matter at issue for this hearing.

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.”

The evidence established that Respondent did not complete the project in accordance with the plans without Complainant’s consent or the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the plans and the applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and (b).

In this case, Respondent admitted that work performed on the shower and HVAC work was not done properly. 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 in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and (B).

In regards to Respondent’s contract on this particular project, testimony was provided by Respondent that due to this Citation, the company had altered its contract from 2 pages to 24 pages to adhere to the law. As such, the evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

In regards to the charge that Respondent was knowingly contracting beyond the scope of his license, Respondent provided clear evidence that the plumbing work was performed by a licensed plumbing subcontractor. However, the evidence established that Respondent performed HVAC and electrical work, which is not within the scope of a B-3 license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. The fact that Respondent lost track of time, unfortunately, is not excusable in this regard. 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 305719 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).

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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 27, 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]

Gregory Johndrow

[email redacted]

Jonathan Paturalski

4310 N Radin Ave

Tucson, AZ 85705

[email redacted]

Grey Colt Construction LLC

910 W Grant Rd

Tucson, AZ 85705

[email redacted]

By: OAH Staff