ALJDEC - Licensing
2024A-10002-CHC-ROC · Registrar of Contractors · 2025-04-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nancy Kroell,
COMPLAINANT
v.
DSA Construction LLC
License No. ROC 342226,
RESPONDENT
No. 2024A-10002-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 31, 2025
APPEARANCES: Complainant Nancy Korell appeared via Google Meet. Dominick Fraijo appeared telephonically on behalf of Respondent DSA Construction. Registrar of Contractors Investigator John Smith appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit A was admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
DSA Construction LLC (Respondent) is the holder of License No. 342226 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 21, 2024, Complainant hired Respondent to perform remodel her bathroom at her home in Oro Valley, Arizona.
On or about August 30, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on October 22, 2024.
Investigator Smith then issued a Written Directive on or about October 28, 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 Monday, December 2, 2024.
. . .
DIRECTIVE REQUIREMENTS
You are directed to:
• Obtain all necessary permits from the local building authorities.
• Satisfy all requirements of the local building authorities.
• Remedy the following violations by the appropriate means:
Complaint Item 3: “and damage to property.”
Investigator’s Observations: Verified.
As a result of work in the new shower area, there is damaged drywall on the back side of the shower wall.
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 4: “Inconsistent and uneven spaces on shower wall tile”
Investigator’s Observations: Verified.
• Width of grout joints in wall tiles varies from 1/16 inch to 1/4 inch.
o All grout joint widths should be even and consistent throughout the project.
• Wall tiles include numerous areas of lippage that exceed the acceptable tolerance of 1/32 inch.
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 5: “Uneven shower pan that was then tiled over, creating visible mounds on shower floor”
. . .
Investigator’s Observations: Verified.
• Width of grout joints in shower floor tiles varies from 0 inch to 3/8 inch.
o All grout joint widths should be even and consistent throughout the project.
• Shower floor tiles include numerous areas of lippage that exceed the acceptable tolerance of 1/32 inch.
• Shower floor slope/drainage is not even or consistent. Shower floor slope ranges from areas of a negative slope to areas of positive slope exceeding 5/8 inch per foot.
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 7: “Faulty drain and drainage in shower floor”
Investigator’s Observations: Verified.
• Shower drain is not centered in shower floor.
• Shower floor slope/drainage is not even or consistent. Shower floor slope ranges from areas of a negative slope to areas of positive slope exceeding 5/8 inch per foot.
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 8: “Failure to install top schluter on wall”
Investigator’s Observations: Verified.
Tile on the soffit within the shower areas is missing the Schluter trim, and has exposed edges.
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 9: “Failure to protect patio: Stained patio pavers where tile cutting took place.”
Investigator’s Observations: Verified.
As a result of cutting tiles in the patio area, pavers are stained.
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 10: “Left long nail in wall in front of pocket door to toilet. As a result pocket door scratched and does not glide properly. Then contractor dry walled over wall, so nail is inaccessible and pocket door does not work.”
Investigator’s Observations: Verified.
The pocket door slab and jamb/frame are damaged.
The respondent acknowledged this is a result of their work.
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 11: “Incomplete finishing (stucco) of outside bump out that contractor said was necessary to place tile up shower wall.”
Investigator’s Observations: Verified.
This project included extending the foundation.
• The foundation is not the correct size in comparison to the walls.
• On one side, the foundation sticks out past the stucco wall coverings.
• On one side, the stucco is flush with the sides of the foundation.
• On one side, the stucco overlaps the foundation.
• All three sides are missing weep screeds.
• Pre-existing stucco was not removed or cut back, indicating the moisture barrier is not properly installed/extended.
• Stucco work is currently incomplete.
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.
ADDITIONAL VIOLATIONS
In addition to the allegations in the complaint, the following violations were verified:
Elements of a Contract
Investigator’s Observations: The respondent’s contract is missing the following information:
• The contractor’s ROC number
• The name of the property owner
o The contract only includes the first name of the property owner
• The date the parties entered into the contract.
o The contract is dated; however, the contract is not signed. Without dated signatures, the date the parties entered into the agreement is not known.
• An estimated date of completion
• A payment schedule
• Information about the customer’s right to file a complaint with the registrar
• Contact information for the registrar
• A signature of the property owner
• A signature of the contractor
Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.
Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least 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.
9a: 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.
9b: 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.
9c: The information in this paragraph must be prominently displayed in the contract in at least ten- point bold type...
9d: ...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.
REQUIRED CORRECTIVE ACTION: The respondent is to submit a contract form (for use on future projects) that complies with A.R.S. § 32-1158
Performing permit required work without a permit being obtained
Investigator’s Observations:
Work on this project included:
• Removing a tub, and installing a tub in its place
• Modifying plumbing below the foundation
• Modifying plumbing inside the walls
• Extending the exterior foundation
• Modifying the exterior wall framing
This is permit required work that was performed without a permit being obtained.
Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code...
Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards...
Building Code: IRC (International Residential Code) R105.1: “Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”
REQUIRED CORRECTIVE ACTION:
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 satisfy all requirements of the local building official, and to submit a copy of the approved inspection results to the ROC Investigator...
(All errors contained in the original).
The Written Directive was then amended by agreement of the parties to have a completion date of December 23, 2024.
While there was no Compliance Jobsite Inspection, Investigator Smith noted on January 13, 2025, the following in pertinent part:
. . .
Note:
• A Compliance Inspection was not conducted.
Number of days allowed for corrective work per the Directive: 35
Number of days from issuance of the Directive to the date of this letter: 77
Number of days allowed for corrective work per the Directive:
• 10/28/24: Initial Directive, specifying a due date of 12/2/24
• 12/3/24: By email, the respondent stated he applied for a permit.
• 12/3/24: Amended Directive, specifying a due date of 12/23/24
• 1/2/25: Phone conversation with the respondent.
o The respondent stated he has applied for the permit.
o The respondent stated he has a meeting with an Oro Valley Inspector January 3, 2025.
o The respondent stated he will provide an update after the meeting.
o The respondent stated he will provide contact information for the Oro Valley Inspector.
• 1/13/25:
o The respondent has not provided any further information, or additional updates.
General Notes:
• 1/13/25:
o The respondent has not provided contact information for the Oro Valley Inspector.
o The respondent has not provided any further information, or additional updates.
o The respondent has not submitted an updated copy of their contractor form.
o The respondent has not complied with the ROC Directive.
Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.
Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...
On January 16, 2025, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).
Respondent failed to submit an Answer to the Registrar.
On or about February 28, 2025, a Notice of Hearing was issued setting a hearing on March 31, 2025, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Smith testified as to the Registrar’s involvement and the above timeline and findings.
Investigator Smith testified that Respondent failed to appear at the compliance jobsite investigation.
Further, Investigator Smith testified that while Mr. Fraijo claimed that the jobsite was “in progress”, the work he performed was not done in a workmanlike manner as he would not have been able to remedy the poor work without removing other work to make the corrections. Also, he still could have complied with the Directive on the matters which did not require the permit.
Too, Investigator Smith testified that Mr. Fraijo failed to provide him with the local building official’s contact information during the corrective work period, rather, only well after the Directive expired.
Complainant testified that the damage on the outside of the house had not been repaired and that Respondent’s work had been a great burden and stressor on her and her husband, as her husband was suffering from Stage 4 metastatic colorectal cancer.
Mr. Fraijo testified that Complainant loved the work via a text message, and that the work performed was “in progress”, and Complainant had fired him before he could complete the project.
Mr. Fraijo also testified that he was unaware that he needed to obtain permits, and that he tried to get the same.
Administrative notice was taken of Respondent’s prior License record on April 16, 2025. Such prior License record reflected that Respondent’s License No. 342226 was first issued on December 15, 2022, and reflected that there was one open case, namely the present 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 there was a violation of A.R.S. § 32-1154(A)(2)(b), and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B), as Respondent failed to obtain a permit on the project, in violation of the city code.
The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as the work performed was not completed in a workmanlike manner, as there was damage to the property, uneven and inconsistent spaces on the wall tile in the shower, uneven shower pan, faulty drain and drainage in the shower floor, there was no top schluter on the wall, and a long nail was left in the pocket door so it was inoperable.
The preponderance of the evidence established that the contract was in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, as it did not contain the contractor’s license number, full name of the property owner, signatures and date of signatures, estimated date of completion, the payment schedule, “right to file” language, and the Registrar’s contact information.
Finally, the preponderance of the evidence established Respondent failed to complete the corrective work following the Directive being issued. Therefore, Complainant 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. 342226 for a period of four 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
It is further recommended that Respondent be ordered to provide the Registrar with a sample contract which complies with A.R.S. § 32-1158. It is recommended that Respondent’s license remain suspended until he complies with the same.
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, April 16, 2025.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
DSA Construction LLC
[email redacted]
Nancy Kroell
[email redacted]
By: OAH Staff