ALJDEC - Licensing
2024A-09760-CHC-ROC · Registrar of Contractors · 2025-03-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nick Logan,
COMPLAINANT,
v.
Desert Sun Customs & Restoration LLC,
License No. ROC 333009,
RESPONDENT.
No. 2024A-09760-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 29, 2025
APPEARANCES: Nick Logan appeared on his own behalf. Casey Levi Conrad, Qualifying Party, represented Desert Sun Customs & Restoration LLC. Arizona Registrar of Contractors Investigator Gregory Johndrow appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Packet); Complainants Exhibits 1 through 8. _____________________________________________________________________
FINDINGS OF FACT
Desert Sun Customs & Restoration LLC (Respondent) is the holder of License No. 333009, General Residential B-3 General Remodeling and Repair, which was issued by the Arizona Registrar of Contractors (Registrar or ROC) in April 2021.
In February 2023, the parties contracted for construction of a 48x10 patio porch cover at Complainant’s home for a total cost of $16,903.44. The final payment on the project was made on April 20, 2023.
In August of 2023, Complainant had metal rain gutters affixed to/at the fascia of the patio cover.
In June 2024, Complainant contacted the Registrar requesting a Building Confidence Program inspection. When the parties’ met for that inspection, the parties viewed the entire project noting items that required attention and correction. Respondent came to the project to make repairs.
On August 29, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on October 23, 2024. Respondent did not attend the jobsite inspection.
Investigator Johndrow issued a Written Directive on October 23, 2024, which provided in pertinent part 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 November 8, 2024.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 3: “Numerous nail misses”
Investigator’s Observations: Verified.
The complainant had marked and pointed out, nails that had missed the intended framing material, in multiple areas throughout the patio cover.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: “Facia boards rafter separations”
Investigator’s Observations: Verified.
There is a significant gap between the facsia and the end of the rafters, the attempt to caulk the void is not acceptable to meet industry standards.
A section of the facsia is warped and broken at the slice joint, the attempt to caulk the void is not acceptable to meet industry standards.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: “An ROC Building Confidence Investigator (case #2024-06463) listed 5 items which failed to meet ROC standards. Desert Sun Customs has not corrected or addressed these items as agreed.”
. . .
Complaint Item 2: “Left side of the patio porch 4-5 inches higher than right side Beams used in construction are warped badly Split rafters”
. . .
Complaint Item 3: “Roof decking peeling”
. . .
Complaint Item 4: “We were charged $420.00 to replace one post when the patio porch is under warranty. We would like restitution.”
On November 15, 2024, Investigator Johndrow reached out to Complainant, who advised that there had not been any contact by Respondent during the corrective period. Therefore, Investigator Johndrow did not scheduled a compliance inspection.
On November 26, 2024, 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).
On December 2, 2024, Respondent submitted an Answer to the Registrar. Respondent noted that they had been to the Complainant’s home three times to make the final repair on replacing the fascia board, but in the end, Complainant had not allowed them to do so for fear of damage to the installed gutters. Respondent also noted that Complainant had wanted Respondent to pay for the gutter company to remove and reinstall the entire gutter system after Respondent had fixed the fascia board.
On December 19, 2024, a Notice of Hearing was issued setting a hearing on January 29, 2025, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline and findings from his inspections. Investigator Johndrow testified that, at the time of the jobsite inspection, some of the complaint items had already been addressed, however, the verified complaint items were remaining in existence.
Investigator Johndrow was not called upon to make a compliance inspection.
At hearing, Mr. Logan testified that there were about 15 nail pops that had not been corrected and that the fascia had not been corrected. Mr. Logan took photographs on January 5, 2025.
Mr. Logan disagreed with the sequence of events that had taken place in the way Respondent had written in his response to the Citation, regarding the gutters and fascia board. While Mr. Logan was reminded that the gutters were not a part of this complaint, he believed that his information would show that he had not allowed Respondent to do the fascia repair for good reasons: (1) that it would void the gutter warranty if Respondent took them down and reinstalled them; (2) that Respondent had already damaged the gutters, nicking the bottom of the gutter, putting in the wrong screws, and causing a hole; and (3) that he was concerned about Respondent’s workmanship standards. Mr. Logan spent a considerable amount of time at hearing regarding the gutters and alleging that Respondent had damaged the gutters and, thus, had voided the gutter warranty.
At hearing, Mr. Conrad testified that his company had gone to the home and made repairs of all the “nail pops” that had been brought to his attention at the time and that he had not been made aware of any further/other nail pops since those repairs before the jobsite inspection. Mr. Conrad acknowledged that he did receive the Directive, but also indicated that he had not received the jobsite inspection notice. Mr. Conrad reiterated the information he had provided in his Answer regarding Complainant not allowing him to make the fascia repair. However, Mr. Conrad also expressed that he was, and would be, willing to come out and complete the work.
In the Registrar’s Guide To Jobsite Inspections, under the section “Written Directives,” the Registrar informs the parties as follows:
Access: In order to use the administrative process offered by the Registrar, a property owner must provide reasonable access to allow the contractor to fix their work as directed by the Registrar in a Written Directive. Complainants may not put any additional, unnecessary restrictions on the Respondent above and beyond the initial contract requirements agreed upon at the beginning of the project. Respondents are required to make repairs on items identified on any Written Directive, not otherwise restricted by local code or HOA limitations. Complainants must make access available to the Respondent to make the required repairs and failure to provide reasonable access may result in the Registrar dismissing the complaint.
Administrative notice is taken of Respondent’s prior License record on June 19, 2024. Such prior License record reflected that Respondent’s License No. 333009 was first issued on April 14, 2021, and reflected that there was one open case, namely the present case. The record also reflected that there was one disciplined case and one “resolved/settled” case.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 preponderance of the evidence established that Respondent did not perform any additional work regarding the nail pops after the Directive was issued. Therefore, while Respondent believed the nail pops issue had been taken care of, the evidence demonstrated that Investigator Johndrow verified some corrective work was needed on that issue and the evidence demonstrated that such work was not completed by the Directive deadline. Therefore, the evidence established that Respondent did not correct the nail pops issue and, in that regard, the project was not completed in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The preponderance of the evidence established that Complainant would not allow Respondent to complete the fascia repair unless Respondent acceded to Complainant’s request to pay for the gutter company to come out and remove the gutter system. Therefore, the evidence established that Respondent was prevented from correcting the fascia board.
The evidence established Respondent failed to fully complete the corrective work following the Directive being issued; however, for one item, Complainant failed to allow access to correct the item.
The hearing record 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).
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. 333009 for a period of one day.
It is further recommended that the Registrar NOT impose a penalty in this matter.
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.
RECOMMENDED this day, March 13, 2025.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Gregory Johndrow
[email redacted]
Desert Sun Customs & Restoration LLC
3912 W Ina Rd Suite 224
Tucson, AZ 85741
[email redacted]
Nick Logan
7321 W. Rivulet Drive
Tucson, AZ 85743
[email redacted]
By: OAH Staff