ALJDEC decisions subject to certification as final

2006A-1365588-ROC · Registrar of Contractors · 2011-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 19, 2011, at 10:00 a.m. APPEARANCES: Complainant Joseph Tyrrell appeared on his own behalf; Respondent Country Handyman, L.L.C. appeared through Tony S. Cullum, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In January 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC181494, Class C-61 for residential limited remodeling and repair contracting to Country Handyman, L.L.C. (“Respondent”). On or about July 2, 2004, Joseph Tyrrell (“Complainant”) filed a complaint to the Registrar concerning Respondent’s construction of a concrete pad and fabrication of a metal shed on property that Complainant owned at 797 Hoctor, Williams, Arizona (“the project”). On or about November 14, 2005, Complainant filed a second complaint to the Registrar against Respondent concerning the project. Complainant also filed several amendments to his complaints. The Registrar designated Complainant’s complaints and amendments as Case No. F06-0136. The Registrar’s inspector, Mark Schweiger, performed four jobsite inspections in Case No. F06-0136 and issued four Corrective Work Orders (“CWOs”) to Respondent, requiring it to correct by appropriate means its workmanship on certain items. The Registrar issued a Citation and Complaint in Case No. F06-0136 and referred it to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On August 13, 2007, November 5, 2007, and March 25, 2008, a hearing was held in Case No. F06-0136 before Administrative Law Judge (“ALJ”) Brian E. Smith of the OAH. On or about April 17, 2008, ALJ Smith issued a decision, finding that Respondent had complied with the CWOs by repairing in a professional and workmanlike manner all items of complaint except the following: A. November 29, 2005 Corrective Work Order (CWO1): cracks in concrete and concrete slab out of flat and holds water.

B. June 27, 2006 Corrective Work Order (CWO3): Item 1 (concrete cracking – repair of CWO1 item); Item 3 (entry door threshold excessively gapped); Item 6 (grade on North side of building appears slightly settled); and, Item 7 (proper sill seal).

Because Respondent’s failure to correct these items furnished cause for the Registrar to discipline its license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[1] former (7),[2] and (23),[3] ALJ Smith recommended that the Registrar suspend Respondent’s license until it provided satisfactory written proof that it had corrected in a professional and workmanlike manner the four workmanship deficiencies. On May 16, 2008, the Registrar substantially accepted ALJ Smith’s recommendation in Case No. F06-0136. The Registrar redesignated Case No. F06-0136 as Case No. 2006-1365588. On February 3, 2011, the Registrar issued an Order Setting Compliance Hearing in Case No. 2006-1365588, summarizing the history of the dispute after the Registrar issued the final Decision and Order in Case No. F06-0136 in relevant part as follows: On January 9, 2009, the Registrar issued an Order in this matter ordering Complainant until February 15, 2009, to empty the garage so as to allow Respondent’s subcontractor to complete the required remedial work. The Registrar’s Order further ordered Respondent to comply with the terms set forth in the Registrar’s May 16, 2008 Order no later than March 15, 2009, in order to avoid disciplinary action against its License.

On or about March 16, 2009, Respondent submitted a Notice of Compliance in the matter. The Registrar subsequently requested a Compliance Inspection.

On or about April 3, 2009, Complainant submitted written correspondence with the Registrar in this matter providing, among other things, that Respondent has yet to perform all necessary corrective work.

On or about April 8, 2009, Respondent submitted additional written correspondence with the Registrar maintaining, among other things, that all work has been completed and that a Compliance Inspection be scheduled at the Registrar’s earliest convenience.

The Registrar Inspector performed a Compliance Inspection, and on or about June 29, 2009 issued his Compliance Inspection Report finding that Respondent failed to rectify the following areas of deficient work: 1. the entry door threshold still has excessive gapping; 2. the grade at the north of the building appears very rough and holds water adjacent to the improvement; and 3. there does not appear to be a complete sill seal applied. Inspector Schweiger also noted there were some outstanding issues as relate to work performed by Asmar Construction with regard to floor coating.

On or about July 29, 2009, following the Compliance Inspection, Respondent submitted correspondence with the Registrar maintaining, among other things, that that [sic] remaining repairs had been performed and had fully complied with the terms set forth in the Registrar’s Order.

On August 11, 2009, the Registrar sent a copy of Respondent’s Notice of Compliance to Complainant, providing Complainant with an opportunity to submit a Response thereto.

On or about October 26, 2009, Complainant submitted written correspondence with the Registrar providing, among other things, that he disagreed with Inspector Schweiger’s conclusions contained in the Compliance Inspection Report.

In view of the foregoing, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Flagstaff area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has fully complied with the terms set forth in the Registrar’s May 16, 2008 Order, absent unreasonable interference or denial of access by Complainant. If it is determined that Respondent failed to fully comply with the terms of the May 16, 2008 Order, absent unreasonable interference or denial of access by Complainant, then its C-61.181494-R License shall be subject to the immediate imposition of discipline. If it is determined that Complainant has unreasonably interfered or denied access to Respondent or its representatives, then no suspension shall be imposed, and the matter shall be closed.

(Emphasis in original.) The Registrar referred Case No. 2006-1365588 to the OAH for an evidentiary hearing on the issue of whether Respondent complied with the Registrar’s Decision and Order in former Case No. F06-0136. On May 19, 2011, a compliance hearing was held in Case No. 2006-1365588 via videoconference from the Registrar’s office in Flagstaff, Arizona. The Registrar’s inspector, Cliff Frandsen, testified. Complainant testified on his own behalf. Respondent submitted nine exhibits and presented the testimony of two witnesses: (1) Its qualifying party and managing member, Jason Glenn Babcock; and (2) Delbert Wayne Snow, the qualifying party and managing member of Asmar Construction, L.L.C., License No. ROC207348, Class KA for dual engineering (“Asmar”). Hearing Evidence Respondent’s contract with Complainant primarily required Respondent to construct the concrete slab for a prefabricated metal building that Complainant purchased to place on the slab. Complainant chose the building, structure, and design. Inspector Frandsen performed a jobsite compliance inspection on May 17, 2011. Respondent submitted photographs of its repairs to the three items that Inspector Schweiger’s June 16, 2009 Compliance Inspector Report opined still required correction (Item B on ALJ Smith’s decision). Inspector Frandsen testified that Respondent had repaired Item B3 on ALJ Smith’s decision, the gap beneath the entry door threshold, in a professional and workmanlike manner by applying a sill seal at the bottom of the interior threshold. Inspector Frandsen testified that Respondent’s repair met the Registrar’s standards. Inspector Frandsen testified that Respondent had corrected Item B6 on ALJ Smith’s decision, the grade at the north end of the shed, to provide positive drainage. Inspector Frandsen testified that Complainant showed him a photograph that showed standing water near but not against the shed, and that when he asked how long the water took to dissipate and drain, Complainant said 1 to hours. Inspector Frandsen testified that the Registrar’s standard only requires standing water that is not adjacent to a building to dissipate within less than 48 hours. Therefore, Inspector Frandsen testified that Respondent’s repair of the grade met the Registrar’s standards. Inspector Frandsen testified that Respondent had corrected Item B7 on ALJ Smith’s decision, the improper sill seal, by applying sealant all around the bottom plate at the interior of the structure. Inspector Frandsen testified that the way the metal building’s components were configured prevented Respondent from completely sealing the building, and that it was possible that if water splashed against some areas, it might go into the interior. Inspector Frandsen testified that because in no event could the water go under the sill, Respondent’s sill seal complied with the Registrar’s standards. Mr. Snow has been a licensed contractor in the Williams area since June 1999. Mr. Snow testified that he inspected the shed immediately after all of Respondent’s repairs and attended both compliance inspections. Mr. Snow testified that Respondent’s repairs met or exceeded with the standard of care for licensed contractors in the Williams area. With respect to Respondent’s repair of the concrete slab that was “out of flat” and held water (Item A on ALJ Smith’s decision), Inspector Schweiger’s June 16, 2009 Compliance Inspector Report stated as follows: A. The floor has been covered with an epoxy/acrylic product and cracks are not visible and water puddles are less than 1/16” when water is applied. This appears to meets [sic] Industry Standards.

The owner now has an issue that the applied coating although pleasing aesthetically is soft and when using his floor jacks indents. He further stated that the finish is too rough to allow easy movement of equipment and furnishings.

These appear to be new issues related to the work performed by a licensed contractor, Asmar . . . .

Complainant testified that he did not find Respondent’s repair of the floor to be acceptable because he contracted for a concrete floor in the shed, not an epoxy/acrylic floor, and that the epoxy/acrylic coating was too soft. Complainant did not present any evidence that Respondent’s repair of the concrete floor fell below the Registrar’s standards or industry standards for such repairs in the Williams area. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[4] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s final order in former Case No. F06-0136 or that Complainant failed to provide reasonable access for it to do so.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Respondent established that it repaired the gap beneath the entry door threshold, the grade at the north end of the shed, and the sill seal in Complainant’s shed in a professional and workmanlike manner and in compliance with the Registrar’s standards. Inspector Schweiger concluded that the epoxy/acrylic coating that Respondent’s subcontractor, Asmar, applied to the concrete floor was an appropriate means to correct the ponding issues in Complainant’s shed. Complainant did not dispute this conclusion in Inspector Schweiger’s report but, instead, complained that he would have preferred a corrective action that did not cover the concrete floor. Complainant does not have the right to dictate the means by which Respondent as a licensed contractor should perform repairs, and if the repairs comply with the Registrar’s standards, such repairs do not support imposition of further discipline against Respondent’s license. Therefore, Respondent established that it fully complied with the Registrar’s final Decision and Order in Case No. F06-0136. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Joseph Tyrrell’s complaint in Case No. 2006-1365588, formerly Case No. F06-0136, against Respondent Country Handyman, L.L.C.’s License No. 181494, Class C-61. 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 40 days from the date of that certification. Done this day, June 6, 2011. /s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(7) formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [3] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [4] See 32-1101 et seq. [5] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826