ALJDEC - Licensing
2024A-09878-CHC-ROC · Registrar of Contractors · 2025-01-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Janie James-High ,
COMPLAINANT
v.
Pinnacle Builders LLC
License No. ROC 312965,
RESPONDENT
No. 2024A-09878-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 9, 2025
APPEARANCES: Janie James-High appeared on her own behalf. Respondent failed to appear. Arizona Registrar of Contractors Investigator Jim Dimond 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 10.
_____________________________________________________________________
FINDINGS OF FACT
Pinnacle Builders LLC (Respondent), is the holder of License No. 312965, B General Residential Contractor, issued by the Arizona Registrar of Contractors (Registrar or ROC) in April 2017.
On or about August 27, 2024, the Registrar received a Licensed Complaint Form (Complaint) from Janie James-High (Complainant) against Respondent alleging abandonment on the project.
The Registrar assigned the Complaint to Investigator Jim Dimond. On September 23, 2024, Investigator Dimond conducted a Jobsite Inspection. No person from Respondent attended the Jobsite Inspection; Complainant’s Husband and Complainant’s son participated in the Jobsite Inspection.
On September 24, 2024, Investigator Dimond issued a Directive requiring that Respondent perform corrective work and so notify the Investigator no later than October 24, 2024. The Directive indicates the following:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Detached Garage as per permitted plans that contract was based [on] Engineered retaining walls for garage and driveway
Investigator’s Observation: These parties were the parties in case #2023-13964. That ALJ Decision has been uploaded to this case.
That case went to hearing and the ALJ determined that due to the detached garage and the retaining walls not being specified on the directive, that they would not be part of the ALJ Recommended decision. She did also indicate that since these items were not part of the ALJ
decision that they could be addressed in future actions.
Several sets of plans were available for review. The detached garage and the retaining walls were shown and called out in numerous locations on all sets.
I also reviewed what appears to be the plans used for construction as they have clearly been used.
I confirmed on that set that the detached garage and the retaining walls are listed on this set.
There are details specifically for "Retaining walls at driveway".
There is a detail for the typical "driveway" cross section and it also says "Retaining walls See Structural Details"
There is a front elevation drawing for the detached garage.
There is a drawing of the detached garage with dimensions and exterior finishes called out.
It is clear to me that the garage, driveway and retaining walls were on the plans and are not built.
This supports the complainant's testimony that the trusses were on site at one point and that the discussion with the superintendent more likely than not occurred regarding ordering the garage doors.
In review of the contract, Section 6 on page 3 line B specifically makes the Plans and Specifications part of the contract.
Nowhere in the contract is there a section outlining any exclusions. Due to this being severely sloped hillside lot, to not build these items would involve an exclusion in the contract or a change order deleting the items. I have not received any change orders deleting these items.
The respondent is to correct the condition in an appropriate manner.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
A.R.S. § 32-1154(A)(2)(a).
Respondent did not perform any corrective work. Investigator Dimond forwarded the matter to the Registrar’s Legal Department.
On October 28, 2024, the Registrar issued a Citation against Respondent charging the following possible violations:
Charge: 1 A.R.S. § 32-1154(A)(2)(a)
Departure from or disregard of (a) Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Charge: 2 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ben Warner, Owner of Respondent, filed an Answer to the Citation on November 13, 2024. In its Answer, Respondent stated that this was a contractual matter and that his contract had not included a garage. The answer indicated that that, while walls were included in the contract, engineered walls were not necessary for the driveway, and that this item was really a landscaping issue for the Complainant.
The Registrar subsequently referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.
On November 27, 2024, the Registrar issued a Notice of Hearing setting the matter to convene on January 9, 2025 at 9:00 a.m., via Google Meet.
On November 29, 2024, the Office of Administrative Hearings also issued an ORDER advised the parties about the January 9, 2025 virtual hearing and specifying how to connect to the hearing via Google Meet.
On the noticed 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 Dimond testified consistent with his findings contained in his Jobsite Inspection Notes and the Directive: Investigator Dimond reviewed plans and the construction set of plans which each showed the detached garage and the retaining walls; the plans contained details specific to "Retaining walls at driveway" and there was a reference to the structural details for the retaining walls; and there were elevation drawings and garage dimension details.
Investigator Dimond noted that he had given Respondent 30 days on the Directive and that, at a minimum, it would have been enough time for Respondent to have begun the corrective work by pulling a permit to do the Directive work. Investigator Dimond opined that, perhaps, Respondent had just failed to include the cost of the garage and retaining walls in its estimate for the project.
Investigator Dimond noted that, at the time of the hearing, Respondent’s license was currently suspended and that there had been several cases that had resulted in the Registrar imposing discipline on the license.
Complainant argued that Respondent failed to build the garage despite all evidence of the plans containing the garage and wall being approved. With the admitted exhibits, Complainant demonstrated the plans, the specifications, other garage details (i.e., the garage door and window selections), and Respondent’s indication that the garage would not be done by October 2024.
Administrative notice is taken of Respondent’s license history and status with the Registrar. Respondent’s license record reflects that Respondent’s License No. 312965 is currently suspended. Additionally, there have been the following: 6 cases in which the matter was resolved, 4 cases in which Registrar imposed discipline, and 6 open cases 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 as had been cited in the Registrar’s Citation. Therefore, Complainant established that Respondent had not completed the project as had been contracted in violation of A.R.S. § 32-1154(A)(2). Complainant further established Respondent had not completed the project in a workmanlike manner 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 Registrar’s Order, the Registrar shall revoke Respondent’s License No. 312965.
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 29, 2025.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Jim Dimond
[email redacted]
Janie James-High
2309 Cyclorama Drive
Prescott, AZ 86305
[email redacted]
Pinnacle Builders LLC
12950 E Shire Way
Prescott Valley, AZ 86315
[email redacted]
By: OAH Staff