ALJDEC decisions subject to certification as final

2025A-01128-CHC-ROC · Registrar of Contractors · 2025-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan Thompson,

COMPLAINANT,

v.

Mountain Shadows Design Build LLC

License No. ROC 280530,

RESPONDENT.

No. 2025A-01128-CHC-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: July 24, 2025. Record closed July 28, 2025.

APPEARANCES:

For Complainant: Ryan Thompson.

For Respondent: Thomas Luikens.

For the Registrar of Contractors: Miles Crosby.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet submitted by the Registrar of Contractors and Registrar Exhibit 1. City of Scottsdale Permit information. Respondent’s Exhibits 1–7.

_____________________________________________________________________

FINDINGS OF FACT

Mountain Shadows Design Build LLC (Respondent) was the holder of License No. 280530 issued by the Arizona Registrar of Contractors (Registrar) on August 22, 2012.

On or about September 10, 2024, Ryan Thompson (Complainant) entered into a contract with Respondent for, among other things, a kitchen remodel.

On or about February 3, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator Mike Wiskow, who conducted a noticed inspection on March 3, 2025.

Investigator Wiskow issued a Written Directive From the Registrar to Respondent on March 6, 2025, which explicitly stated that Respondent was required to correct the identified issues by appropriate means by March 21, 2025.

The Directive notified the parties to direct questions to the Investigator, and the Guide to Written Directives explained that requests for extensions may be submitted to the investigator.

Respondent asked to schedule corrective work, beginning Monday, March 10, 2025. Complainant imposed some restrictions on Respondent’s access and behavior. Respondent performed some corrective work throughout the remaining directive period.

Respondent did not request an extension.

On March 21, 2025, Complainant informed Respondent that they would no longer be allowed on his property to perform further work.

On March 28, 2025, Investigator Wiskow conducted a noticed Compliance Inspection and found that items 3, 9, and 11 had been corrected.

On April 2, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), specifically R4-9-108(A); A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on April 17, 2025.

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

On April 28, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the above-entitled matter for hearing.

Investigator Wiskow was not available for the hearing. Investigator Miles Crosby reviewed the case file and testified in the place of Investigator Wiskow. Investigator Crosby testified in support of Investigator Wiskow’s findings.

Bob Long testified that he drafted the plans, got the permit, and ordered a successful inspection during the Directive Period. He testified that it is not unusual to get a permit after work has already been started or completed.

Richard Fisch testified to a timeline of events. He testified that Complainant’s real issue was that he wanted different cabinets, but the installed cabinets were correct under the contracted. He testified that the cabinets issues were warranty issues, and he should be able to get replacement materials for free from the manufacturer. He testified that Respondent only had access for about eight days of work. He testified that corrective work was impossible in eight days, but he never requested an extension. He testified about his understanding of the directive process timeline in this matter.

Nicholas Todd testified that he was aware of the Directive on March 6, 2025, and he knew that 15 days was not enough time to complete the job. After consideration, he testified that Respondent requested access starting on March 10, 2025. He testified that Complainant restricted days, time, and activities at the property. He testified that some of the issues in the cabinets were due to bad design by Complainant’s designer.

Administrative notice was taken of Respondent’s prior License record on August 12, 2025. According to that record, Respondent’s License No. 280530 was active. The license had only one open complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

“The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive.” In this matter the Written Directive was issued fifteen days before the compliance date. As stated on page one of the Written Directive, it was issued on March 6, 2025, and the compliance date was March 21, 2025. Respondent argued that it should have had fifteen working days to complete the corrective work and that because it was not given fifteen working days, the process was defective. Respondents are guaranteed that Directive compliance will be due no sooner than fifteen days after the Directive is issued; Respondents are not guaranteed fifteen days of uninterrupted work. Having fewer than fifteen days to work does not per se demonstrate a denial of access or any other deficiency. Denial of access and granting extensions of time are evaluated under a reasonableness framework.

During the Directive period, homeowners cannot refuse access to a contractor and seek discipline against that contractor. Refusing access impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, homeowners are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means. Reasonable limits include reasonable restrictions on behavior. If reasonable limits imposed by a complainant cause a delay in the corrective work, a contractor’s recourse is to request additional time from the Registrar.

Extensions are typically granted upon request when a Respondent demonstrates that it is making active efforts to comply with the Directive, especially when Respondent can demonstrate good cause for needing additional time. The default corrective period is generally 15 days. Often, that is not enough time; through simple communications with the investigator, a contractor can demonstrate that it is taking steps to comply with the Directive by appropriate means and request additional time to complete the work. Investigators generally grant requested extensions that are shown to be reasonable by contractors who are taking necessary steps to comply with the Directive.

Complainant did not deny access to Respondent. Complainant’s restrictions on when Respondent could perform work and his rules were reasonable.

Respondent did not request an extension despite having the right to do so and a need for additional time. Respondent argued that it was deprived of the opportunity to request an extension when it did not receive the Compliance Inspection Notice for the inspection on March 28, 2025. Respondent’s argument that the Compliance Inspection was the only appropriate moment to request an extension is not compelling. Respondent should have requested an extension prior to the expiration of the Directive Period, March 21, 2025. Having failed to timely request an extension, Respondent could have requested an extension between the end of the Directive Period on March 21, 2025, and receiving the Citation on April 2, 2025, but it did not do so. In this matter, Respondent was not precluded from requesting an extension or unreasonably denied an extension.

A contractor accepts the surface upon which they work. Prior to performing work, a contractor should inspect the surface for flaws or defects that would affect the work to be performed; if the surface is unacceptable, the contractor should call the defect to the owner’s attention so that the owner can choose to pay for corrective work or for the contractor to request a warranty disclaimer.

A contractor is expected to use materials that are fit for their purpose, including identifying defective materials and not using them. While a manufacturer may be ultimately responsible for replacing unfit materials, the contractor is responsible for having used unfit materials.

In correcting work pursuant to a Written Directive From the Registrar, a contractor cannot damage property or create additional workmanship issues. Any damage or new deficiencies in workmanship must be fixed before the directive period ends.

The preponderance of the evidence supports that the Registrar did send the Compliance Inspection Notice to Respondent. The preponderance of the evidence does not support that Respondent was excluded from the compliance inspection. Furthermore, Respondent was not deprived of material procedural process by failing to appear at the Compliance Inspection. Respondent was able to communicate with the investigator until his retirement, and then, with Investigator Crosby. And at the hearing, Respondent was provided an opportunity to inform the Tribunal of the same information that it would have provided to the investigators, including getting the opinion of the investigator.

The preponderance of the evidence established that Respondent departed from or disregarded a building code in violation of A.R.S. § 32-1154(A)(2)(b) by failing to get plans and a permit prior to performing work that required plans and a permit. Although having performed work without a plan and permit cannot be corrected, Respondent got plans, a permit, and approval during the Directive Period. Thus, the Tribunal determined that no additional discipline was necessary for this violation.

The preponderance of the evidence established that Respondent failed to perform all work in a professional and 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 Respondent violated A.R.S. § 32-1154(A)(12), namely the contract requirements in A.R.S. § 32-1158, by using a non-compliant quote as a contract, which failed to include, at least but not exclusively, subparts 4 and 9.

The preponderance of the evidence 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). However, the preponderance of the evidence supports that Respondent made efforts to perform corrective work during the Directive Period. Given the benefit of the doubt, Respondent’s failure to request an extension was not purposeful, and if Respondent had more time, it would have done additional corrective work. Based on these facts, the Tribunal does not recommend a civil penalty in this matter.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for two days Respondent’s License No. 280530.

It is further recommended that Respondent be allowed to submit a warranty claim for the cabinetry and thereby attain replacement hardware owed to Complainant by the manufacturer. Respondent should be given thirty days after the effective date of the Order to demonstrate a claim has been submitted; afterward such a demonstration, Respondent should be afforded a reasonable opportunity to obtain and deliver those warrantied materials.

It is further recommended that within thirty days of the effective date of the Order Respondent shall provide an amended contract to the Registrar which establishes compliance with the requirements in A.R.S. § 32-1158. If Respondent fails to comply, Respondent’s license shall be suspended until it provides a compliant contract.

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, August 18, 2025.

/s/ Samuel Fox

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Ryan Thompson

[email redacted]

Thomas G. Luikens, Esq.

Luikens Law Office

[email redacted]

Miles Crosby

[email redacted]

By: OAH Staff