ALJDEC - Licensing

2024A-07960-CHC-ROC · Registrar of Contractors · 2024-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Little,

COMPLAINANT,

v.

EMB Construction, LLC,

License No. ROC 346161,

RESPONDENT

No. 2024A-07960-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 25, 2024

APPEARANCES: Michael Little appeared on his own behalf. Respondent failed to appear. Arizona Registrar of Contractors Investigator Mike Wiskow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Packet); Complainant’s Exhibits 1 through 4.

_____________________________________________________________________

FINDINGS OF FACT

EMB Construction LLC (Respondent), is the holder of License No. 346161 issued by the Arizona Registrar of Contractors (Registrar or ROC).

On July 16, 2024, the Registrar received a Licensed Complaint Form (Complaint) from Michael Little (Complainant) against Respondent alleging poor workmanship on a pool and spa project.

The Registrar assigned the Complaint to Investigator Mike Winslow. On July 29, 2024, Investigator Wiskow conducted a Jobsite Inspection. Respondent did not attend.

On July 30, 2024, Investigator Wiskow issued a Directive requiring that Respondent perform corrective work no later than August 14, 2024. The Directive indicates the following:

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

Complaint Item: 1 - Pool lights do not work

Investigator’s Observation: Confirmed. Pool lights do not work. Pool lights should work.

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: 2 - Pipes are undersized for pump it will run out of water if you run pump over 60 percent on hot tub.

Investigator’s Observation: Confirmed. When pump is run on high, it runs out of water at the hot tub recirculation.

Pump should not starve when run on high.

Contractor should verify the problem 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: 3 - Not enough check valves hot tub will siphon dry when pump shuts off if valves are not set right.

Investigator’s Observation: Confirmed. The hot tub water draws down to pool level unless a valve is manually closed. This should be governed by a check valve.

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: 4 - Poor tile job

Investigator’s Observation: Confirmed. The waterline tile grout has a crack at the top around the perimeter of the pool. The tile grout should not be cracked.

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: 5 - Hot tub spillway is pebble tech. Not protected by water.

Investigator’s Observation: Confirmed. The hot tub to pool spillway has exposed pebble tech. Per product and industry standards, pebble tech should not be exposed to sun.

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 - PVC run is unsupported at elbow.

Investigator’s Observation: Confirmed. The 90 degree elbow coming out of the filter is too long without a support causing it to sag and leak at the filter inlet. Piping should be properly supported.

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

On August 19, 2024, Investigator Wiskow spoke with Complainant who informed him that Respondent had not performed any work. Investigator Wiskow created compliance notes that mirrored the Directive and then then forwarded the matter to the Registrar’s Legal Department.

On August 19, 2024, the Registrar issued a Citation against Respondent charging the following possible violations:

Charge 1: A.R.S. § 32-1154(A)(3), namely 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.

Charge 2: 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 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.

Respondent filed an Answer to the Citation on August 30, 2024. In its Answer, Respondent stated that the nonworking “lights” issue was due to rewiring Complainant had done and Respondent indicated it was willing to come back and work on the pipes and tile.

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

On September 5, 2024, the Registrar issued a Notice of Hearing setting the matter to convene on October 25, 2024, at 1:00 p.m., via Google Meet.

On September 5, 2024, the Office of Administrative Hearings also issued an ORDER advised the parties about the virtual hearing and specifying how to connect to the hearing via Google Meet.

On the date and at the time set for hearing, Respondent did not appear through an authorized member, employee, or attorney. Respondent had not requested that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Wiskow testified consistently with his findings contained in his Jobsite Inspection Notes and the Directive.

Complainant simply argued that Respondent’s work needed to be corrected as was noted by Investigator in the Jobsite Inspection Notes and in the Directive.

Respondent’s ROC license 64161 is a KB-2 DUAL RESIDENTIAL AND SMALL COMMERCIAL license. That classification permits the holder to perform work allowed under both the the B-2 General Small Commercial and the B- General Residential Contractor licenses, which provide as follows:

The B GENERAL RESIDENTIAL CONTRACTOR:

This classification allows the licensee to construct and repair all or any part of a residential structure or appurtenance. Work related to electrical, plumbing, air conditioning systems, boilers, swimming pools, spas and water wells must be subcontracted to an appropriately licensed contractor. This classification does not include work authorized by the A-, B-1, or B-2 scopes.

B-2 GENERAL SMALL COMMERCIAL CONTRACTOR

For projects of $2,000,000 or less including labor and materials, this classification allows the licensee to perform commercial construction in connection with any new structure or addition built, being built, or to be built for the support, shelter and enclosure of persons, animals, or movable property of any kind. This scope includes the supervision of all or any part of the above and includes the management or direct or indirect supervision of any work performed. Work related to electrical, plumbing, fire protection systems, air conditioning systems, boilers, swimming pools, spas and water wells must be subcontracted to an appropriately licensed contractor. This classification does not include work authorized by the A-, B-, B-3, or residential scopes.

The Registrar’s Citation sets forth the possible violation of A.R.S. § 32-1158. When reviewed by the Tribunal, the “contract” attached to the Complaint documents the lack of multiple statutorily-required written contract provisions.

A.R.S. § 32-1158 requires that a written contract contain the following information:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten-point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

Administrative notice is taken of Respondent’s license history and status with the Registrar. Respondent’s license record reflects that Respondent’s License No. 346161 is active and that there are two open cases with the Registrar, one of which is the instant case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

The ORDER sent by the Office of Administrative Hearings was issued to Respondent at the email address on record with the Registrar. Therefore, Respondent is also deemed to have received notice of the virtual setting and process for the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. 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).

The evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent had not completed the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A). Complainant further established Respondent had not completed the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(22).

The evidence of record documents that Respondent’s contract was not in compliance with the requirements set forth in A.R.S. § 32-1158.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar shall suspend Respondent’s License No. 346161 for a period of five business days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, November 13, 2024.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Mike Wiskow

[email redacted]

Michael Little

[email redacted]

EMB Construction, LLC

[email redacted]

By: OAH Staff