ALJDEC decisions subject to certification as final

2014A-1544-ROC · Registrar of Contractors · 2016-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2015 and February 4, 2016 APPEARANCES: Senol Pekin on his own behalf; Craig Curtis for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On October 14, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 9, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent C Curtis Construction, Inc. (“C Curtis”), holds license number B.100521-R issued by ROC.[1] Craig Curtis is C Curtis’s qualifying party and president. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[2] 4. Through the Citation, ROC alleges that C Curtis may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that either subsection has been violated, ROC may suspend or revoke C Curtis’s license.[3] 5. Complainant Senol Pekin owns a residence for which C Curtis was the general contractor. 6. Mr. Pekin filed a complaint with ROC alleging nine deficiencies on C Curtis’s part. 7. In response to that complaint, ROC Investigator Matt Gunstra conducted a job-site inspection on June 8, 2015. C Curtis was not present at the job-site inspection because it did not receive actual notice of that inspection until the day after the inspection was completed. C Curtis does not assert that it suffered prejudice due to the lack of notice. 8. At the inspection, Mr. Gunstra allowed Mr. Pekin to add a tenth item to his complaint. 9. Mr. Gunstra issued a Directive dated June 26, 2015, in which ROC directed C Curtis to remedy by appropriate means five of the items Mr. Pekin complained of. ROC found that the other five alleged workmanship violations were unsubstantiated and did not require corrective action. 10. The Directive, by its terms required C Curtis to remedy the violations no later than July 14, 2015. Mr. Gunstra subsequently extended the deadline to July 22, 2015, because C Curtis was working to reactivate its license. 11. At the time the Directive was issued, C Curtis’s license was suspended for lack of a bond and non-renewal. Mr. Curtis testified that this was because C Curtis had exited the home- building business. After receiving the Directive, C Curtis took the required steps to reactivate its license, which was completed on August 26, 2015. 12. While its license was suspended C Curtis could not make, or contract for others to make, repairs at the house. 13. C Curtis’s policy is to have repairs made by subcontractors acting under its direction. Consequently, C Curtis chose to reactivate its license rather than paying a contractor hired by Mr. Pekin. 14. C Curtis disputes that all of five of the items ROC’s Directive ordered C Curtis to remedy are workmanship issues that it was responsible to correct. Despite this, at the hearing, Mr. Curtis said that C Curtis had planned to complete all of the work as required by that ROC’s Directive, but was denied access to do so. 15. On September 23, 2015, Mr. Curtis and the required subcontractors arrived at Mr. Pekin’s house.[4] 16. Before any actual repair work was done, there was an argument between Mr. Pekin and Mr. Curtis, and Mr. Pekin ordered everyone off his property. 17. Mr. Gunstra conducted a prehearing inspection and testified that the repairs ROC that ROC ordered C Curtis to make had not been completed. 18. Mr. Gunstra’s testimony showed that C Curtis was cooperative after receiving the Citation in that it expressed its willingness to make the repairs it was ordered to complete. Item 1 “Phone plugs not working in bedroom 2 and 5” 19. The house has nine phone lines, but the module in the panel can only support seven lines.[5] ROC determined that there was no workmanship violation. 20. Dennis Sage Home Entertainment was the subcontractor. 21. Sage’s Chris Weber provided credible testimony that when Mr. Pekin ordered the phone system, he had informed Mr. Pekin that two of the phone lines would not be active. 22. Sage was willing to adjust the existing system to Mr. Pekin’s liking free-of-charge by activating whichever seven lines Mr. Pekin preferred to have active. Alternatively Sage would install a nine-line module for $59. 23. At the hearing, Mr. Pekin took the position that the written contract did not disclose that all nine of his phone lines would not be active. 24. The preponderance of the evidence does not show that there was a workmanship violation with respect to the phone lines. Item 2 “Uncured stucco flexing through[-]out with microcracks” 25. Mr. Gunstra’s job-site inspection notes show that Mr. Pekin alleged that the stucco work was too thin and that it moved when pressed on. 26. Mr. Gunstra determined that the stucco met the manufacturer’s requirements for the application. 27. At the job-site inspection, Mr. Gunstra was shown two or three areas with damaged stucco. 28. Mr. Pekin pushed on the stucco to show Mr. Gunstra that it would flex. Pushing on stucco can cause cracking or other damage. 29. Mr. Gunstra did not find a basis on which to cite C Curtis for poor workmanship. 30. The preponderance of the evidence does not show that there was a workmanship violation related to the stucco. Item 3 “Nails popping out/dry wall cracks” 31. ROC found no workmanship violations in this regard. At hearing, Mr. Pekin withdrew this allegation. Item 4 “Driveway concrete issues” 32. Mr. Gunstra determined that the difference between the heights of the garage slab and driveway was a fairly consistent 3/8 inch and that there was no cracking.[6] Mr. Gunstra found that there was no basis to substantiate any poor work by C Curtis. 33. At the hearing, Mr. Perkin asserted that his child might trip on the interface. 34. The preponderance of the evidence does not show that there was a workmanship violation related to the driveway. Item 5 “West wall not plum[b]/level; Issue not fixed in a workmanshiplike manner” 35. Mr. Gunstra’s job-site inspection notes show that after a Builder Confidence Program inspection, C Curtis made corrections to the interior of the west wall to make it “level.” At his June 8, 2015 inspection, Mr. Gunstra found that the wall was within tolerance. 36. Mr. Gunstra did find however, that two window jambs were now out of square. Mr. Gunstra wrote that the “exterior plane of the same wall is likely[[7]] still out of plumb” and he concluded that C Curtis had “not truly fix[ed] the out of plumb issue.”[8]

37. Mr. Gunstra then concluded that the ROC Standard for Carpentry – Framing #3 had been violated. 38. The evidence of record does not show that Mr. Gunstra actually measured the outside wall during either the June 8th job-site inspection or at the prehearing inspection. 39. C Curtis acknowledges that the windows require repair or correction. 40. Samons Bros. Framing was the subcontractor responsible for this item. 41. Samons’ general manager Robert E. Perry, Jr. was at Mr. Pekin’s house on September 23, 2015. 42. Mr. Perry inspected the two windows and the exterior wall. 43. Mr. Perry’s opinion was that the exterior wall was within tolerance (1/4 inch per eight feet),[9] and he acknowledged that the windows required repair or correction. 44. Mr. Perry testified that the windows could be repaired and as to how the repair would be conducted. 45. Martin Rosso is a licensed home inspector operating Arizona Building Inspections, LLC. Mr. Rosso inspected the house for Mr. Pekin on March 6 and August 1, 2013, and he “visited” the house on March 26th. 46. Mr. Russo prepared “Summary Reports” regarding his March 6th and August 1st inspections that were admitted into evidence along with a short email related to the March 26th visit. 47. Mr. Russo’s reports show that the wall was out of plumb at both inspections and that the issue had twice been brought to the job superintendent’s attention. 48. At the hearing, Mr. Rosso testified that the exterior wall was still out of plumb, but it is not clear when he had last inspected the wall. 49. The preponderance of the evidence does not show that the wall was out of plumb at the time of the job-site inspection. 50. The preponderance of the evidence shows that the two windows require repair and do not meet the minimum workmanship standards. 51. The preponderance of the evidence shows that Mr. Pekin did not allow C Curtis access to repair the two windows on September 23, 2015. Item 6 “Concrete floor not level/flat in first floor” 52. A contractor other than C Curtis had installed a wood floor in the area of concern. The wood floor was not level. 53. Mr. Pekin had also filed a complaint against that contractor, who had been cited by ROC for the issue. 54. At his June 8th job-site inspection, Mr. Gunstra determined that the evidence did not substantiate a finding that C Curtis had committed a workmanship violation. 55. At the hearing, Mr. Pekin withdrew this allegation. Item 7 “Squeaky subfloor in second floor” 56. Mr. Gunstra’s job-site inspection notes show that the travel paths do not have many, if any, squeaks. Within one to two feet of the walls however there were squeaks or pops. Considering the number of rooms affected, Mr. Gunstra considered the problem “excessive.” 57. Mr. Gunstra concluded that the ROC Standard for Carpentry – Framing #1 had been violated. C Curtis acknowledges that this item requires repair. 58. Samons Bros. Framing was the subcontractor responsible for this item. Mr. Perry acknowledged that the issue required repair, although he considered the symptom to be pops rather than squeaks. 59. On September 23, 2015, Mr. Perry explained to Mr. Pekin how this issue could be repaired. Mr. Pekin asked C Curtis and its subcontractors to leave before any repairs were completed. 60. The preponderance of the evidence shows that there is squeaking or popping in violation of the workmanship standards. 61. The preponderance of the evidence shows that Mr. Pekin did not allow C Curtis access to make the required repair on September 23, 2015. Item 8 “Excessive temperature variations. Rooms not cooling/heating up” 62. Mr. Gunstra’s job-site inspection notes show that Mr. Pekin’s complaint was the variation in temperature, especially the master bathroom. Mr. Gunstra noted that the bathroom was in the southwest corner of the house and that it had three windows without blinds. 63. Mr. Gunstra took temperature readings in the center of the room at five feet following ROC’s protocol. Mr. Gunstra found that the master bath was at 81 degrees and the laundry room at 83, whereas the ROC standard calls for a maximum of 78 degrees for cooling. Mr. Gunstra determined that these two rooms did not meet the standard and that the ROC Standard for Air Conditioning and Heating #6 had been violated. 64. Sonoran Air was the responsible subcontractor. Sonoran Air’s Tim Cardosa was at the house on September 23, 2015. 65. Mr. Cardosa testified that Mr. Pekin had informed him that he had closed off vents in the house. Closing vents will adversely affect an HVAC system’s performance. 66. Mr. Pekin disputed that he told Mr. Cardosa that he had closed off vents. 67. While at the house on September 23, 2015, Mr. Cardosa removed an air filter that was extremely dirty and showed a January installation date. 68. Dirty air filters such as the one in Mr. Pekin’s home can adversely affect an HVAC system’s performance by affecting fan speed and by causing coils to ice-up. 69. Mr. Cardosa had not finished his evaluation of the system when the subcontractors were asked to leave. 70. Mr. Gunstra testified that he had not looked at the filters during his June 8th job-site inspection and that he had not been told that Mr. Pekin had closed vents. He was aware that Sonoran had been to the house and had adjusted vents. 71. There was evidence adduced in an effort to show that the vent in the master bedroom and another vent were poorly located. None of the witnesses however professed to have the requisite engineering knowledge to provide a competent opinion. 72. The preponderance of the evidence does not show that there was a workmanship violation regarding the HVAC system. Item 9 “Pony wall cracking. Simple stucco patch up did not help” 73. Mr. Gunstra’s job-site inspection notes show that the block wall in front of the house had a stair-step crack. Such cracks are allowable if not from a structural defect and if under 1/8th inch wide. 74. Mr. Gunstra found that this crack exceeded 1/8th inch in some locations and that the ROC Standard for Masonry #4 had been violated. 75. When shown his job-site photograph of the wall, Mr. Gunstra acknowledged that earthwork for a concrete slab Mr. Pekin was having installed had been conducted next to the wall. Mr. Gunstra agreed that this type of earthwork could affect such a wall. 76. Mr. Pekin’s complaint included a photograph of the wall showing the stair-step crack, albeit without a way to determine the width of the crack at the time of that photograph. 77. Mr. Pekin testified that the concrete was poured shortly after the job-site inspection, but the record does not reflect the date that the earthwork was completed. 78. The preponderance of the evidence shows that the pony wall has a crack of greater than 1/8th inch, which is a violation of the workmanship standards. Item 10 Addendum: Cracked floor tile in kitchen at island and laundry room at sink 79. Mr. Gunstra’s job-site inspection notes show that there was one cracked tile adjacent to the kitchen island and one adjacent to the cabinet in the laundry room. 80. Mr. Pekin acknowledges that he had a contractor other than C Curtis replace the kitchen island. C Curtis takes the position that Mr. Pekin also had the laundry room cabinets replaced, but Mr. Pekin testified that these cabinets had not been replaced. 81. In support of its contention regarding the laundry room, C Curtis had submitted into evidence an email showing that cabinets for both areas were delivered to the house. 82. In his job-site inspection notes, Mr. Gunstra wrote that he did not see evidence of impact that “would suggest [the tiles] were damaged by others. Per ROC Standards cracked tiles should be repaired as necessary.” Mr. Gunstra found the ROC Standard for Tile #1 had been violated. 83. Mr. Gunstra testified that he did not know what caused the tile to crack, but ROC’s standards do not allow any cracked tiles. 84. An impact may crack a tile without leaving an “impact mark.” 85. Onsite Design was the subcontractor that installed the tile. Onsite’s owner Julie Hudson was at the house on September 23, 2015. Ms. Hudson did not seek to determine the cause of any cracking, because Mr. Curtis had directed her to replace the cracked tiles, which is what Onsite planned to do. 86. Mr. Pekin asked the subcontractors to leave the house before Onsite could make any repairs. 87. The preponderance of the evidence does not show that there was a workmanship violation related to the tiles. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The preponderance of the evidence does not show that C Curtis is unscrupulous, unqualified, or financially irresponsible. 9. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. 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. (Underscore added.)

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 11. Ariz. Rev. Stat. section 32-1155(C) provides that “The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if **** The contractor's work has been subject to neglect, modification or abnormal use.” Item 1 “Phone plugs not working in bedroom 2 and 5” 12. The preponderance of the evidence does not show that there is a workmanship violation related to Item 1 of Mr. Pekin’s complaint. Item 2 “Uncured stucco flexing through[-]out with microcracks” 13. The preponderance of the evidence does not show that there is a workmanship violation related to Item 2 of Mr. Pekin’s complaint. Item 3 “Nails popping out/dry wall cracks” 14. Mr. Pekin withdrew this allegation. Item 4 “Driveway concrete issues” 15. The preponderance of the evidence does not show that there is a workmanship violation related to Item 4 of Mr. Pekin’s complaint. Item 5 “West wall not plum[b]/level; Issue not fixed in a workmanshiplike manner” 16. C Curtis acknowledges that there are two widows that require repair. As such, the preponderance of the evidence shows that there was a workmanship violation related to those two windows. 17. The preponderance of the evidence does not show that the wall was out of plumb at the time of Mr. Gunstra’s job-site inspection or at the prehearing inspection. The preponderance of the evidence does not show that there is a workmanship violation related to the wall itself. Item 6 “Concrete floor not level/flat in first floor” 18. Mr. Pekin withdrew this allegation. Item 7 “Squeaky subfloor in second floor” 19. C Curtis acknowledges that the floor requires repair. The preponderance of the evidence shows that there is a workmanship violation related to Item 7 of Mr. Pekin’s complaint. Item 8 “Excessive temperature variations. Rooms not cooling/heating up” 20. Although Mr. Gunstra’s job-site inspection showed that two rooms were not within the required standard, he did not check the condition of the system’s filter(s). Considering the condition of the filter on September 23, 2015 and that the filter showed a January installation, the preponderance of the evidence does not show that there is a workmanship violation related to Item 8 of Mr. Pekin’s complaint. See Ariz. Rev. Stat. § 32-1155. Item 9 “Pony wall cracking. Simple stucco patch up did not help” 21. Although Mr. Pekin altered the area near this wall prior to the job-site inspection, the evidence is sufficient to show that there was a workmanship violation because the evidence supports a conclusion that the crack appeared before the earthwork was completed. 22. The preponderance of the evidence shows that there was a workmanship violation related to Item 9 of Mr. Pekin’s complaint. Item 10 Addendum: Cracked floor tile in kitchen at island and laundry room at sink 23. The cause of the cracks are not known, but considering the location of the crack adjacent to the kitchen island that was replaced by a contractor other than C Curtis, the preponderance of the evidence does not show that C Curtis’s workmanship is responsible for that crack. 24. Because the record does not show the cause of the crack in the laundry room, the preponderance of the evidence does not show that C Curtis’s workmanship was the cause of the crack. 25. The preponderance of the evidence does not show that there is a workmanship violation related to Item 10 of Mr. Pekin’s complaint. ROC’s Directive 26. C Curtis was prepared to complete all items that ROC’s June 26, 2015 Directive ordered it to repair. In late August, C Curtis made attempts to contact Mr. Pekin to schedule the repair work, but Mr. Pekin’s schedule occasioned a short delay in that scheduling. 27. As of September 23, 2015, C Curtis was at the house with the subcontractors required to make those repairs, but was unable to do so because Mr. Pekin asked them to leave. 28. Considering the facts and circumstances of this matter, C Curtis has not violated Ariz. Rev. Stat. section 32-1154(A)(22) because its initial contact with Mr. Pekin was within a reasonable time after receiving the Directive and the repairs were not completed because Mr. Pekin denied access. Conclusion 29. Because C Curtis has violated Ariz. Rev. Stat. section 32- 1154(A)(3), its license is subject to discipline. C Curtis raised its prior long-standing good record with ROC in its closing argument, which, along with its current record as set forth on ROC’s website, is a mitigating factor. 30. That C Curtis was prepared to fix all that ROC ordered it to fix, despite its belief that it was not responsible for all these repairs is also a factor in mitigation. 31. Based on the facts and circumstances of this matter, a seven day suspension is appropriate, provided that if C Curtis appropriately remedies the two windows, the squeaking/popping floor, and the cracked pony wall, no suspension will be imposed.

RECOMMENDED ORDER IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter C Curtis Construction, Inc.’s license number B.100521-R is suspended for seven days unless the Registrar of Contractors receives proof that C Curtis Construction, Inc. has appropriately remedied the three items set out above, provided that Senol Pekin must allow C Curtis Construction, Inc. access to make the required repairs. 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 is forty days after the date of that certification.

Done this day, February 8, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows C Curtis’s license number as 100521. Consistent with existing policy, in this Decision the number set out in the caption is used. [2] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on September 3, 2015. The Citation shows that the Complaint was filed on April 21, 2014, but the Citation appears to be in error. At the hearing, the Mr. Pekin and C Curtis presented evidence on a Complaint that was initially filed on April 3, 2015 and modified on June 16, 2015. [3] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing. Citation at p. 2. [4] C Curtis found that Mr. Pekin was not responsive to its initial attempts to contact him. Mr. Pekin thought that the timing was not unreasonable considering his schedule. [5] It is not unusual to see phone lines or cables prewired like this. [6] In his job-site inspection notes, Mr. Gunstra made reference to the ADA standard. At the hearing, when Mr. Curtis asked him about that standard, Mr. Gunstra initially responded that it was irrelevant. [7] Underscore added. [8] Mr. Pekin’s Exhibit N (correspondence from C Curtis to ROC sent after C Curtis received the ROC’s Directive) shows that C Curtis requested information on how the wall was determined to be out of plumb and it requested a re-inspection to be attended by its subcontractor. This exhibit also shows that C Curtis’s position is that Mr. Pekin had previously agreed that the wall had been properly repaired. [9] Mr. Perry acknowledged that there was variation in the stucco.

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

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