ALJDEC decisions subject to certification as final

2012A-3119-ROC · Registrar of Contractors · 2013-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2013, at 8:15 a.m. APPEARANCES: Phillip Apodaca (hereinafter “Complainant”) appeared on his own behalf. Robert Elliott Membery dba: Membery Construction Co (hereinafter “Membery”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Membery is the holder of License No. B.154311-R issued by the Registrar of Contractors. 2. This is a residential matter that started when Complainant’s residence, located at 17015 Redwood, Munds Park, Arizona 86017, suffered extensive snow damage. Membery entered into a written construction agreement to repair the snow damage to the residence, including the replacement of damaged roof trusses, on August 11, 2010, for the total sum of $79,500.00. 3. Complainant was dissatisfied with Membery’s workmanship and filed a formal Complaint against Membery with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Rick J. Emry (hereinafter “Inspector Emry”), conducted an onsite inspection. 5. Inspector Emry issued a written Corrective Work Order on July 17, 2012, directing Membery to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order provided, in pertinent part, as follows: #1 roof leaks, ceiling in the master bath is falling in The master bathroom on the west end of the trailer has paint and texture that has separated from the bathroom ceiling in an area approximately 4’ x 6’. Also the paint and texture is peeling away from around the south window well. It appears that water also bled behind the painted and textured surface of the adjacent walls to the bathroom in a vertical line down to the base board as paint and texture is bubbled up or peeling to the interior of the bedroom. Respondent shall correct by appropriate means[.]

#2 repair wood floor in living room floor buckled (water damage) The installed hardwood flooring parallel to the north/south wall that separates the living area from the master bathroom was buckle[d] in an area approximately 1’ wide and 6’ to 8’ in length. Respondent shall correct by appropriate means[.]

#3 Level floor in living room addition Living room floor is out of level approximately 3/4” in a 4’ span, or approximately 1-1/4” to 1-1/2” over the 8’ wide addition. Respondent shall correct by appropriate means[.]

#4 Remove the Christmas tree lights and replace with standard lighting fixtures There is a strand of clear lights (1-1/2” bulbs 1’ o.c.) that run the entire length of the pot self that surrounds the kitchen and living room area on the east, north and west walls. Respondent shall correct by appropriate means[.]

#5 install a dryer vent There is no venting fixture provided for a dryer in the laundry area. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufacturer’s installation instructions.

#6 security door on the patio is installed backwards Security door opens inward with latch guard to inside of patio. No plan, specifications, or properly executed change order provided at time of inspection. No action required by the Respondent[.]

#7 Front door does not lock The front door dead bolt does not engage the deadbolt face plate. Respondent shall correct by appropriate means[.]

#8 fix the hose bib on the front and replace the missing hose bib on the water heater side of the house. The installed hose bib on the west end of the north porch is askew approximately 10 to 15 degrees both vertical and horizontal. Respondent shall correct by appropriate means[.]

#8 Outside lighting needs to be sealed Black foam gaskets are in place, neighbor indicted there were people on site a few days prior to JSI. Corrected prior to job site inspection. No action required by the Respondent[.]

#9 Outdoor access to crawl space needs something better than a leaning log to secure The double access doors only have a simple sliding bolt in place which does not fully secure the doors tight against the wall. Respondent shall correct by appropriate means[.]

Added during Jobsite Inspection:

#10 The installed engineered masonry stacked block wall needs to have the cap blocks secured in place. The 2’ tall stacked block wall caps were not secured in place and are simply placed atop the stacked blocks. Respondent shall correct by appropriate means following manufacture[r’s] installation instructions.

#11 Loose and hanging floor insulation in crawl space below living room addition. The are three batts of insulation that are left partially hanging from the joist bays which are in contact with the ground of the crawl space adjacent to where a new pier was installed. Respondent shall correct by appropriate means[.]

#12 There is no waste stack vent above the master bathroom and only one waste stack vent between the kitchen, east bathroom and laundry area. There is no waste stack vent penetrating the roof over the master bathroom on the west end of the house. There is only the one 2” abs waste stack vent centrally located between the kitchen area and the east bathroom. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufacturer’s installation instructions.

7. Inspector Emry testified that he conducted a pre-hearing inspection on February 8, 2013. Inspector Emry stated that he observed that all of the items on the Corrective Work Order requiring corrective action had been properly corrected by Membery.[1] 8. Inspector Emry’s testimony is found to be credible. 9. Complainant testified that he was very dissatisfied with the quality of Membery’s construction work. Complainant stated that Membery failed to comply with the intent of the parties’ construction agreement. Complainant testified that Membery’s construction work was the work of an amateur rather than a professional contractor. Complainant acknowledged that Membery performed corrective work in response to the Corrective Work Order. Complainant testified that the corrective work performed by Membery was not acceptable.[2] 10. Robert Elliott Membery (hereinafter “Mr. Membery”) testified that Membery performed all of its construction work in a professional and workmanlike manner. Mr. Membery stated that all construction work was inspected and approved by the local building authority. Mr. Membery testified that Membery fully complied with the terms of the Corrective Work Order.[3] 11. Administrative notice is taken of Membery’s prior license record as reflected on the Registrar of Contractors’ public website on February 27, 2013. Such prior license record reflects that Membery’s License No. B.154311-R is current. Membery’s License No. B.154311-R was suspended by the Registrar of Contractors for non-renewal from May 3, 2010, through October 1, 2010. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Credible testimony and evidence established that Membery fully complied with the terms of the Corrective Work Order and that Membery’s work on the project presently meets all of the Registrar’s standards. Because construction is not a perfect art, generally contractors must be allowed to correct their work before their licenses are disciplined as a result of poor workmanship. Therefore, this Tribunal concludes that Complainant failed to meet his burden to prove that Membery violated the charged provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[4] and A.R.S. § 32-1154(A)(23).[5] 4. The written construction agreement prepared by Membery did not contain Membery’s contractor’s license number preceded by the acronym “ROC” and did not notify Complainant that he had a right to file a complaint against Membery with the Registrar of Contractors. This Tribunal concludes that Membery violated the charged provision of A.R.S. § 32- 1154(A)(13),[6] namely, A.R.S. § 32-1158.[7] 5. The evidence establishes that Membery knowingly entered into a construction agreement on August 11, 2010, and began construction work on Complainant’s residence shortly after the construction agreement was signed. Membery’s License No. B.154311-R was suspended by the Registrar of Contractors for non-renewal from May 3, 2010, through October 1, 2010. This Tribunal concludes that Membery contracted and performed contracting work while Membery’s License No. B.154311-R was under suspension for non-renewal in violation of the charged provision of A.R.S. § 32-1154(A)(18).[8] RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order that License No. B.154311-R of Membery shall be suspended until the Registrar of Contractors receives and accepts written proof that Membery has brought all of its construction agreements into full compliance with the provisions of A.R.S. § 32-1158. It is further recommended that if Membery fully accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided indefinite License suspension shall not take place and that, instead, Membery’s License No. B. 154311-R shall be placed on active suspension for a period of fourteen (14) days to be followed by sixty (60) days of disciplinary probation. It is further recommended, in addition to the above-provided penalties, if any, that Membery pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32- 1154(E).[9] The failure by Membery to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Membery’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Membery, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, February 28, 2013.

/s/M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 2/13/13 Hearing Record (hereinafter “H.R.”) at 16:16-18:46. [2] H.R. at 19:15-1:27:14. [3] H.R. at 1:27:38-1:45:19. [4] 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.” [5] 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.” [6] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [7] A.R.S. § 32-1158 provides, in pertinent part, as follows: A. From and after December 31, 1992 until December 31, 2007, any contract in an amount of more than one thousand dollars and less than one hundred fifty 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. B. From and after December 31, 2007, 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. 9. 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. 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 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, 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. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

[8] A.R.S. § 32-1154(A)(18) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” [9] A.R.S. § 32-1154(E) provides, in pertinent part, as follows:

The registrar shall impose a civil penalty of not to exceed one thousand dollars on a contractor for each violation of subsection A, paragraph 18 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic permanent revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person associated with the contractor, as defined in section 32- 1101, subsection A, paragraph 5, unless payment of any outstanding civil penalty is tendered.

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

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