ALJDEC decisions subject to certification as final

2013A-5224-ROC · Registrar of Contractors · 2016-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, and March 1, 2016. APPEARANCES: James E. Twine (hereinafter “Complainant” or “Mr. Twine”) appeared on his own behalf. Ground Zero Restoration, LLC (hereinafter “Respondent” or “Ground Zero”) was represented by its attorney, Jason M. Venditti, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. B-3.270713-R and B-2.282844-C. Both of Respondent’s licenses were current on March 14, 2016. This is a residential matter in which on or about June 18, 2013, Respondent entered into a contract with Complainant to perform fire restoration work at Complainant’s residence located at 3723 W. Broadway Rd., Phoenix, Arizona 85041 (hereinafter the “residence”). Respondent completed its restoration work at Complainant’s residence on or about October 24, 2013. Complainant did not feel that Respondent had properly completed the construction project and demanded that Respondent complete the construction project to Complainant’s satisfaction. When Respondent failed to correct the alleged problems with its construction work to Complainant’s satisfaction, Complainant filed a Complaint (2013-5224) against Respondent with the Registrar. Case No. 2013-5224 was closed by the Registrar on March 13, 2014, pursuant to the assigned Registrar Investigator’s conversation with the Complainant. Complainant disagreed with the closure and the matter was re-opened. On August 13, 2015, a written Directive for Case No. 2015-978 was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Patio roof coming apart: I was shown a location on the front of the home where the fascia was coming apart. Per jobsite agreement this will be repaired by appropriate means. 2. Front security door: Two lag bolts that hold the frame in place on the hinge side had come loose. Per jobsite agreement to be repaired by appropriate means. 3. Front door not tight to weather stripping: The door is tight when dead bolt is latched. Adjust striker plate on door handle and add jam to threshold small angled weather strip at bottom. Per jobsite agreement. 4. Roof leaked during the rain the night before inspection: The roof jack on electrical outlet conduit penetration west of the AC unit not installed correctly and the roof jack on unused conduit coming through roof does not have proper size roof jack. Cap unused conduit. Per jobsite agreement to be repaired by appropriate means. 5. Warranty Roof certificate: Provide certificate of warranty for homeowner.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant asserted that Respondent had failed to comply with the written Directive and requested the Registrar to issue a Citation against Respondent’s licenses. On August 14, 2014, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

Hearing Evidence The assigned Registrar Investigator, Jack Grimm (hereinafter “Investigator Grimm”), testified that the original Registrar’s Investigator for this matter was no longer with the Registrar’s office. Investigator Grimm stated that he was present for the previous Investigator’s onsite inspection at Complainant’s residence that took place on December 18, 2013. Investigator Grimm said that when the case was re-opened it was assigned to him. Investigator Grimm said that he performed an onsite inspection at Complainant’s residence on August 13, 2014, at 10:00 a.m. Investigator Grimm said that his supervisor was present for the inspection. Investigator Grimm testified that he prepared the written Directive that was issued on August 14, 2014. Investigator Grimm stated that the completion date on the written Directive was August 29, 2014. Investigator Grimm said that he performed a compliance inspection on October 30, 2014. Investigator Grimm said that Item Nos. 1, 2 and 4 of the written Directive were not complete. Investigator Grimm said that the Complainant had not been provided with a roof warranty document. Investigator Grimm said that the matter was then referred to the Registrar’s legal department. Investigator Grimm testified that the parties were very confrontational at his onsite inspections. Investigator Grimm stated that he agreed that the items set forth in the written Directive were relatively minor. Investigator Grimm said that most of the items set forth in the Complaint were unsubstantiated. Investigator Grimm said that Respondent was not present for the compliance inspection. Investigator Grimm testified that he did not know whether anyone had tampered with Respondent’s corrective work at Complainant’s residence. Investigator Grimm’s testimony is found to be credible. Michael Buban (hereinafter “Mr. Buban”) testified that he had approximately forty years of construction experience. Mr. Buban stated that he had previously worked for the Respondent. Mr. Buban stated that he performed corrective work at Complainant’s residence on everything set forth in the written Directive. Mr. Buban said that he was certain that all of the corrective work was performed in a professional and workmanlike manner. Mr. Buban said that the security door was corrected when he left the residence. Mr. Buban said the fascia board had been corrected when he left the residence. Mr. Buban said that there had been no requirement that he correct the flashing and that he considered it to be a new item. Mr. Buban said that roof jack problem was caused by the electrician. Mr. Buban said that he felt the problem with the roof jack was not the Respondent’s responsibility. Mr. Buban said that the Respondent had been denied access to correct the items set forth in Investigator Grimm’s compliance inspection notes. Mr. Buban acknowledged that his affidavit indicated that he had used screws to repair Complainant’s fascia when in fact he utilized nails. Mr. Twine testified that the fascia and the security door on his residence had not been properly corrected. Mr. Twine stated that his roof was leaking. Mr. Twine acknowledged that Mr. Buban performed corrective action on his residence after the written Directive was issued. Mr. Twine agreed that he had not allowed Respondent access to his residence after Mr. Buban completed the corrective work on his residence. Mr. Twine said that he preferred that Respondent not come back to his residence. Mr. Twine denied that he had denied access to Respondent. Mr. Twine denied that Respondent’s attorney had contacted him in an attempt to have Complainant allow Respondent access to Complainant’s residence to perform corrective action on the residence. Mr. Twine testified that he did not want Respondent back on his property because Respondent’s manager was confrontational. Mr. Twine stated that his residence was partially destroyed in a fire. Mr. Twine acknowledged that his fire insurance was insufficient to cover the restoration of his residence. Respondent’s attorney left telephone messages in an attempt to schedule corrective work on April 28, April 29, April 30, May 1, and May 4, 2015. On May 14, 2015, Respondent sent Complainant a certified letter requesting access to Complainant’s residence to perform corrective action on Complainant’s residence.[3] William Higgins (hereinafter “Mr. Higgins”) testified that he was the Respondent’s general manager. Mr. Higgins stated that Respondent tried to give back to the community. Mr. Higgins said that the Complainant was under-insured and did not have sufficient insurance money to pay for the fire restoration work on Complainant’s residence. Mr. Higgins said that the cost of the work performed by the Respondent far exceeded the contract price for the fire restoration work. Mr. Higgins said that the Complainant was happy with Respondent’s work until the Respondent tried to collect the balance of contract amount. Mr. Higgins said that the items set forth in the written Directive were “punch-list” items that were not completed by the Respondent because the Complainant excluded the Respondent from jobsite before Respondent could perform a punch-list inspection and correct punch- list items at the residence. Mr. Higgins testified that after the Respondent was informed that that the Registrar had determined that the written Directive had not been fully complied with, Respondent repeatedly attempted to gain access to Complainant’s residence to correct the items set forth in Investigator Grimm’s compliance inspection notes. Mr. Higgins stated that Complainant denied the Respondent access to correct the items. Mr. Higgins opined that Complainant had damaged Respondent’s corrective work to avoid paying the Respondent for its work. Mr. Higgins’ testimony is found to be credible.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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. 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). Mr. Higgins credibly testified that after the Respondent was informed that that the Registrar had determined that the written Directive had not been fully complied Respondent repeatedly attempted to gain access to Complainant’s residence to correct the items set forth in Investigator Grimm’s compliance inspection notes and that Complainant had denied the Respondent access to correct the items. Respondent’s attorney left telephone messages in an attempt to schedule corrective work on April 28, April 29, April 30, May 1, and May 4, 2015. On May 14, 2015, Respondent sent Complainant a certified letter requesting access to Complainant’s residence to perform corrective action on Complainant’s residence. The preponderance of the evidence established that Complainant denied Respondent reasonable access to his residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. . 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 five days from the date of the certification. Done this day, March 15, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

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. [3] See Exhibit 10 (5/18/15 Letter from Respondent’s attorney/Letter to Complainant from Respondent with certificate of mailing dated May 14, 2015).

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

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