ALJDEC decisions subject to certification as final

2014A-2368-ROC · Registrar of Contractors · 2015-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2015, at 1:00 p.m. APPEARANCES: Kenneth F. Kipp (hereinafter “Mr. Kipp” or “Complainant”) appeared on his own behalf. Lawson Development Inc. (hereinafter “Respondent”) was represented by its president, Rodney Lawson (hereinafter “Mr. Lawson”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Respondent is the holder of License No. KB-2.144674-D issued by the Registrar. Respondent’s License is current. This is a residential matter in which on or about August 20, 2013, Complainant contracted with Respondent for the construction and purchase of Complainant’s residence at 5367 N. Prairie Heights Drive, Kingman, Arizona (hereinafter the “residence”). Complainant was dissatisfied with Respondent’s workmanship on his residence and filed a Complaint against Respondent with the Registrar. Complainant filed numerous addendums to his complaint. Pursuant to the filing of the formal Complaint and addendums, an assigned agency Investigator conducted several onsite inspections of Complainant’s residence. On May 5, 2015, a written Directive was issued by the Registrar. On August 12, 2015, a second Directive was issued by the Registrar. February 19, 2015, a written Directive was issued by the Registrar. The written Directives 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:

The two Directives listed 15 complaint items that required corrective action by the Respondent.

After Respondent failed to correct all of the items set forth in the two written Directives, Complainant requested the Registrar to issue a Citation against Respondent’s license. On July 8, 2015, 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]

The assigned Registrar Investigator, Cliff Corlett (hereinafter “Investigator Corlett”), testified that Complainant’s Complaint was received by the Registrar on June 13, 2014. Investigator Corlett stated that he had performed the initial onsite inspection on July 22, 2014, and that he prepared the first written Directive which was issued on August 12, 2014. Investigator Corlett stated that Complainant subsequently filed additional addendums and that he performed addition onsite inspections. Investigator Corlett said that another written Directive was issued by the Registrar on May 5, 2015. Investigator Corlett testified that he performed a Compliance inspection on June 17, 2015. Investigator Corlett stated that that the block wall had not been corrected. Investigator Corlett said that the problem with the block wall is a cosmetic issue. Investigator Corlett said the parties were unable to resolve their differences on how to properly correct the block wall. The May 5, 2015 written Directive provided, in relevant part, that “Respondent should properly remove and replace any and all block that have had additional mortar applied to conceal the original course bond joints and remove and replace any and all block with mortar smeared on the block face that was not properly cleaned off.” Investigator Corlett testified that he conducted a prehearing inspection on December 5, 2015. Investigator Corlett said that one of the unresolved issues, was the flooring. Investigator Corlett stated that the laminate flooring had been removed from the house. Investigator Corlett said that floor had not been replaced. Investigator Corlett said that he observed boxes of new flooring material in the house. Investigator Corlett said that he observed that the Jacuzzi tub had been torn apart and was informed that the plumber was waiting for a new part to install in the tub. Investigator Corlett stated that the block wall had still not been corrected Investigator Corlett testified that if there are applicable CC&Rs that a licensed contractor is expected to comply with them. Investigator Corlett stated that there was no complaint about the structural nature of the block wall. Investigator Corlett said that it was a cosmetic issue. Investigator Corlett said the masons inadvertently got a lot of mortar on the colored block. Investigator Corlett said that if Complainant’s CC&Rs would allow, that painting or stuccoing the block wall would be an acceptable repair. Investigator Corlett’s testimony is found to be credible. Mr. Kip testified that the Jacuzzi tub had been torn apart and had not been reassembled yet. Mr. Kip said that the plumber had failed to return to his residence to complete the reassembly of the tub. The May 2, 2015, written Directive provided, in relevant part, as follows: “Spa control worked properly at inspection. No contractor action required. Mr. Kip testified that the next issue was the floor. Mr. Kip acknowledged that boxes of new flooring material were now in his residence. Mr. Kip stated that the manufacturer agreed to replace the flooring material and pay for part of the cost of installing the new flooring. Mr. Kip said that there is moisture in the cement floor which precludes the installation of the new flooring material until the moisture issue is resolved. Mr. Kip said that he has been without a floor in the residence for over two months. Mr. Kip said that he has no toilets in the house. He said that he has toilets that are ready to be installed but no one wants to install the new toilets until the new flooring is installed. Mr. Kip testified that Investigator Corlett directed Respondent to repair or replace the block wall. Mr. Kip stated that he allowed Respondent to try and power-wash the wall and that it caused damage to the block wall so that he would not allow Respondent another attempt to power-wash the wall. Mr. Kip said that applicable CC&Rs in his neighborhood preclude painting or stuccoing the block wall. Mr. Kip’s testimony is found to be credible. Mr. Lawson testified that he did not know why his plumber had not finished the work on the Jacuzzi. Mr. Lawson testified that the new flooring has not been installed because the moisture level of the concrete is too high for the manufacturer to provide a warranty. Mr. Lawson said that the flooring subcontractor expects to be able to install the new flooring with a week or so. Mr. Lawson said that he doesn’t want to install the new flooring without a warranty. Mr. Lawson said that the Complainant acknowledged that he had experienced a water leak behind the refrigerator. Kevin Wilkerson (hereinafter “Mr. Wilkerson”) testified that he was the subcontractor that installed the block wall. Mr. Wilkerson acknowledged that his workers inadvertently spilled some grout down the face of the wall. Mr. Wilkerson said that the wall was structurally sound and that the grout spill was only aesthetic damage to the wall. Mr. Wilkerson said that he tried pressure-washing the walls. Mr. Wilkerson acknowledged that the pressure-washing caused some of the blocks to discolor. Mr. Wilkerson testified that he warned the Complainant’s wife of the possibility of discoloration before the wall was pressure-washed. Mr. Wilkerson said that if blocks were cut out it would make the appearance of the wall look worse. Mr. Wilkerson said that Complainants are difficult to work with. Mr. Wilkerson opined that there was nothing that could be done to please the Complainant. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] The suspended status of Respondent’s License does not deprive Complainant of his right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint.[4] 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.[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] Complainant established by a preponderance of the evidence that the numerous complaint items set forth in the written Directives failed to comply with applicable workmanship standards and that the Respondent had failed to fully comply with the Registrar’s written Directives. This Tribunal concludes 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 commencing on the effective date of the Registrar’s Order, License No. KB-2.144674-D of Respondent shall be suspended for a period of two (2) days. It is further recommended that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent 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 Respondent’s contractor’s licenses effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent 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 five days from the date of the certification. Done this day, December 17, 2015. /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] A.R.S. § 32-1154(A). [4] A.R.S. § 32-1154(C). [5] A.A.C. R2-19-119. [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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