ALJDEC decisions subject to certification as final

2014A-2548-ROC · Registrar of Contractors · 2016-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2015 APPEARANCES: Complainant Miroslawa Dunn was represented by Matthew Pierce. Douglas McGrew, Qualifying Party, appeared on behalf of Respondent McGrew and Associates LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent McGrew and Associates LLC is the holder of License No. 180497 and 180498 issued by the Arizona Registrar of Contractors (Registrar). On or about August 26, 2011, Complainant Miroslawa Dunn entered into a contract with Respondent to build a new home for the total price of $1,060,792.00. On or about September 23, 2012, Douglas McGrew notified Complainant that he would not complete the project unless Complainant paid additional money in excess of the contract. On or about October 8, 2012, Respondent stopped work on the project. On or about April 2, 2013, the project was completed by a different contractor. On or about March 6, 2014, Complainant filed a Complaint with the Registrar alleging poor workmanship. The Registrar assigned the complaint to Investigator Timothy Pennington. On or about August 7, 2014, after a jobsite inspection, Investigator Pennington issued a written directive to Respondent that provided 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. Cracks in stucco walls on each side of house and spider webbing. 2. Discoloration mainly white spots on stucco 3. Cracks in floor tiles and grout and grout staining 4. Window in casita leak damage to drywall 5. Cracks in garage door panels

Correct by the appropriate means

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

Following the issuance of the written directive, Respondent made some attempts to repair items, but did not correct all of them. On or about November 19, 2014, Investigator Pennington performed a compliance inspection at which time he determined Respondent had fixed the window in the casita and the damage to drywall in compliance with workmanship standards. Investigator Pennington determined that some of the cracks in the floor tiles and grout and grout staining had been corrected, but not all of it and that the garage door had been repainted, but had not been sanded or had the cracks filled in. Investigator Pennington also noted that Respondent had not corrected the remaining items listed in the directive. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). Investigator Pennington testified that approximately 80 percent of the stucco had extensive cracking that was not in conformity with the Registrar’s standards. Complainant’s husband, Dr. Neil Dunn, testified that after the Registrar completed its investigation, he hired a different contractor to repair the problems and complete the project without any problems. Mr. McGrew testified that he was aware of the cracks in the stucco and believed it was related to Complainant’s requirement that Respondent use “Ty-Vec” under the wire instead of the foam Respondent normally used. Respondent did not deny that the workmanship issues existed and/or that Respondent had corrected those issuses. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 11, 2016. Such prior License record reflects that Respondent’s License No. 180497 was first issued on May 5, 2002, had been voluntarily cancelled on July 16, 2014. Such prior License record also reflects that is one open complaint against Respondent’s license. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 11, 2016. Such prior License record reflects that Respondent’s License No. 180498 was first issued on May 5, 2002, had been voluntarily cancelled on July 16, 2014. Such prior License record also reflects that is one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. Complainant established by a preponderance of the evidence that Respondent’s performance of the work required under the contract was not in compliance with the Registrar’s standards as demonstrated specifically by the extensive cracking in the stucco. Therefore, the evidence established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[1] 4. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar with respect to the stucco and other attempts to comply with the written directive were not effective. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke McGrew and Associates LLC’s License No. 180497 and 180498. 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, January 11, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(22) 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.”

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