ALJDEC - Licensing

2024A-07552-CHC-ROC · Registrar of Contractors · 2025-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Suneil Jain,

COMPLAINANT,

v.

BWL Construction LP,

License No. ROC 289316,

RESPONDENT.

No. 2024A-07552-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 19, 2025

APPEARANCES: Suneil Jain represented himself. Attorney Christian T. Lestinsky represented BWL Construction LP. Registrar Investigator Robert Di Alto 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); Respondent Exhibits 1 through 15.

_____________________________________________________________________

FINDINGS OF FACT

BWL Construction LP (Respondent) is the holder of License No. 289316, B General Residential, issued by the Arizona Registrar of Contractors (Registrar or ROC) in February 2014.

On July 3, 2024, the Registrar received a Licensed Complaint Form (Complaint) from Suneil Jain (Complainant) against Respondent alleging abandonment, the construction process taking too long, unsatisfactory workmanship, and some items begun but not completed. The project was a structural addition to a residential home in Scottsdale, Arizona. The work began in October 2022 and stopped in May 2024.

The Registrar assigned the Complaint to Investigator Robert Di Alto, who conducted a Jobsite Inspection on August16, 2024. Inv. Di Alto reviewed thirty-two (32) various items or issues raised by Complainant at the inspection and documented ten (10) of the issues through his notes and photographs.

On August 29, 2024, Inv. Di Alto issued a Written Directive (Directive) requiring that Respondent perform corrective work and so notify the Investigator no later than September 27, 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 09/27/24.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 3-Electrical subpanel box in garage with exposed wires, multiple wires into single breakers; many have incorrect breakers — needs to bigger sub panel box. Work not completed.

Investigator’s Observation: Verified. I observed the described complaint item. The cover was off of the panel, breakers were visible and wiring appears to be incomplete. The Respondent shall correct by the appropriate means, and correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 8-Exposed wires in kitchen pantry. Worked not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions, and correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 10-Fire sprinkler system. Work not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions, and correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 19- Kitchen millwork incorrect specs above fridge, cabinet doors missing, and moldings not complete, visible nails from improper install.

Investigator’s Observation: Verified. I observed cabinets missing doors, pulls/knobs, door and drawer fronts miss-aligned, fingerprints on doors, and doors above the refrigerator exhibit s different overlay than the rest of the cabinets. The Respondent shall correct buy the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 22- Outside stucco work never finished; wrong color, cracks in numerous places — stucco already peeling upstairs casita patio, edging is peeling due to overspray over windows; virtually all window edging can be seen with overspray along edges

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 24- Fire alarm system beeping.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions, and correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 26- Upstairs casita: Not sure if HVAC ductwork is attached. Vents are exposed. Return is exposed. Work not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions, and correct any deficiencies required by the county/city, and pass final permit inspection.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 29- The Stucco/tile work around patio deck circumference has not been completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 30- Stucco peeling around base in different areas most noticeably around casita garage base. Very obvious on the south garage wall. Work not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 32- Backfill dirt and repair stucco work around new 400 amp electrical panel which was replaced at main house — this was the last job he did and was supposed to have finished all outstanding electrical issues. Work not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complainant and Respondent continued to work together towards the resolution and correction of the Directive items.

Inv. Di Alto conducted a compliance inspection on October 28, 2024.

On November 20, 2024, Complainant advised Mr. Di Alto that he no longer wanted to work with Respondent to resolve the remaining Items #3 and #8.

Thereafter, Inv. Di Alto issued his Compliance notes and addressed the noncompletion of Items #3 and #8, stating in pertinent part.

Complaint Item: 3-Electrical subpanel box in garage with exposed wires, multiple wires into single breakers; many have incorrect breakers — needs to bigger sub panel box. Work not completed.

Investigator’s Observation: Verified. I observed the described complaint item. The cover was off of the panel, breakers were visible and wiring appears to be incomplete. The Respondent shall correct by the appropriate means, and correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: As of 10/29/2024 the electrical permit inspection was rejected.

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: 8-Exposed wires in kitchen pantry. Worked not completed.

Investigator’s Observation: Verified. Respondent shall complete project per original agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions, and correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Complaint item was not corrected prior to CJSI.

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

Inv. Di Alto subsequently forwarded the matter to ROC legal Department.

On November 21, 2024, Complainant emailed Mr. Di Alto, stating:

Good afternoon. They did fix the exposed wires in the kitchen area. There was just a bunch items that the inspector said needed to be done regarding electrical that he did not do. So it’s accurate to say that he did not complete everything needed to get to the final inspection.

On November 22, 2024, the ROC issued a Citation against Respondent charging the following possible violations:

Charge 1: A.R.S. § 32-1154(A)(2)(b)

Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Charge 2: 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 3: A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158

Failure in any material respect to comply with this chapter: Namely A.R.S. § 32-1158

Charge: 4 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 December 6, 2024, Respondent filed an Answer to the Citation, denying all allegations.

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

On January 3, 2025, the Registrar issued a Notice of Hearing setting the matter to convene on February 6, 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. After a continuance, the hearing convened on March 19, 2025.

At hearing, Inv. Di Alto testified consistent with the findings contained in his Jobsite Inspection notes, Directive, and Compliance Inspection notes. Inv. Di Alto testified that, at the time of the October 28, 2024 compliance jobsite inspection, the panel in the garage had needed to be a larger panel and had needed to pass the city final inspection. Further that the building permit finalization was not yet pending at that time and the certificate of occupancy also had not been issued.

At hearing, Inv. Di Alto indicated that the ROC citation regarding A.R.S. § 32-1154(A) (12) - A.R.S. § 32-1158 was not accurate.

Inv. Di Alto noted that the permit had not been finaled/closed out at the time of the compliance inspection and, therefore, the cited statutory provisions were appropriately cited. Inv. Di Alto had reviewed the city website information in September of 2024 and the electrical was not final at that time; he noted that he is not able to confirm whether electrical work specifically meets the applicable code and must rely on the city inspection information as to whether it’s complete, and he accepts that information as of the date that he checks it.

At hearing, Complainant concentrated on the invoices and the charges for the Respondent’s electrical work thereon. Complainant related that, as to many of the noted charges on the invoices throughout many weeks of the work, the notes show that Respondent’s electrician “Greg” had done final work on the panels and had done some finishing of trims. Complainant noted that in week 39/40, Greg had done the final rough in; further, that in weeks 41 - 48, the invoices reflect Greg’s work had included trimming outlets.

At hearing, Respondent noted that its electrical work was to the “pre-drywall” stage and that the remaining finishing work, i.e., the trim work, was not within their responsibility. Respondent noted that the pre-drywall stage was completed at week 47 and its workers were still painting in week 49, therefore, Respondent could not have been installing any finishing trim earlier than that. Respondent insisted that it did not do the trim out and that someone else had done the trim out.

Respondent described its invoices as estimates of work that would be done “for the next week” because Complainant’s father had wanted to be informed as to the amount of “hourly” work that was intended to be done each week. However, Respondent noted that Greg had installed a fan in the primary bedroom and, perhaps, a chandelier.

Respondent argued that the city inspector’s rejection of the electrical on October 29, 2024 was not due to any of Respondent’s workmanship, noting that the specific listed items in the city inspection history report had not been a part of its contract responsibilities. Respondent further noted that Complainant’s handyman, “Mike,” had been present at the October 29, 2024 city inspection and was hanging the carriage lights and had been overheard expressing that he would “get to” the GFCIs.

Respondent believed it should not have been cited with regard to Item #8 because on November 21, 2024, Complainant had indicated it had been repaired.

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 B General Residential license, License No. 289316, 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. 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, the Administrative Law Judge concludes that each of the Investigator-determined workmanship and permit inspection issues had existed at the time of the jobsite inspection and were reflected in the Directive. Further, the Administrative Law Judge concludes that, at the October 28, 2024 compliance inspection, the Items #3 and #8 were not yet completed. Based on the evidence, at this project Respondent was in violation of the following Arizona contracting laws and rules:

A.R.S. § 32-1154(A)(2)(b) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

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.

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.

Further, the evidence demonstrates Respondent had corrected eight of the ten items listed in the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s ROC License No. 289316 for a period of four days.

It is further recommended that the Registrar require Respondent to pay the sum of $1,00.00 as a civil penalty pursuant to A.R.S. § 32-1154(E) for the failure to have corrected the remaining two items, Item #3 and #8.

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 A.R.S. § 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 1, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Suneil Jain

[email redacted]

Christian T. Lestinsky

LANG THAL KING & HANSON PC

[email redacted]

[email redacted]

Robert Di Alto

[email redacted]

By: OAH Staff