ALJDEC decisions subject to certification as final

2014A-2764-ROC · Registrar of Contractors · 2015-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2015, and October 6, 2015. APPEARANCES: Mary Ann Nance (hereinafter “Complainant” or “Ms. Nance”) appeared on her own behalf. William Lee Nolte dba B & N Awnings (hereinafter “Respondent” or “Mr. Nolte”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) 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 Respondent is the holder of License No. CR-3.232825-D issued by the Registrar. Respondent’s License No. CR-3.232825-D License was voluntarily canceled by the Respondent on June 8, 2015. This is a residential matter in which on or about May 9, 2014, the parties entered into a construction agreement memorialized in a proposal offered to, and accepted by, Ms. Nance on May 9, 2014. The parties’ agreement called for Respondent to remove the old awning and install a new awning at Complainant’s residence at 3821 S. Inca Dove Place, Sierra Vista, Arizona. Respondent completed his construction work at Complainant’s residence on or about June 30, 2014. Complainant checked with the local county building official to see if a building permit had been required for the construction of the new awning at her residence. The local building official informed her that the installation of the new awning required a building permit. Complainant then obtained the required building permit and the local building official conducted an onsite inspection of the new awning. The local building official found that the installation of the new awning on Complainant’s residence did not comply with applicable code requirements and that the roof panels were loose and posed a hazard.[1] On or about July 10, 2014, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. The Investigator performed a water test on the new awning and observed that it leaked in several areas.[2] On August 18, 2014, a written Directive was issued by the Registrar.[3] 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. The existing footings for porch posts were never verified by contractor with the Cochise County Building Department.

2. The roof panels used are not per plans and specifications and have not been approved by the Cochise County Building Department.

3. The roof panels [are] not locked into pan and screw fasteners [are] installed upside down and are not per plans and specifications and have not been approved by the Cochise County Building Department.

4. NO washers used with fasteners and are not per plans and specifications and have not been approved by Cochise County Building Department.

5. The connection to the columns require 2 3/8 inch bolts and are not per plans and specifications and have not been approved by the Cochise County Building Department.

6. The screws connecting the c-channel to the house members [are not] the minimum size required (#14-1 ¾”) and are not per plans and specifications and have not been approved by the Cochise County Building Department.

7. The screws connecting the c-channel to the house members are into decaying lumber and are not per plans and specifications and have not been approved by the Cochise County Building Department.

8. The corner brackets are not the ones required per plans and specifications and have not been approved by the Cochise County Building Department.

9. The plans and specifications require 3 inch square posts and are not per plans and specifications and have not been approved by the Cochise County Building Department.

10. The connections to the gutter and legs require two 3/8 inch bolts and are not per plans and specifications and have not been approved by the Cochise County Building Department.

11. The exposed screws on flashing [are] not caulked and have not been approved by the Cochise County Building Department.

12. The gutter is not pulled tight against roof panels and is not per plans and specifications and has not been approved by the Cochise County Building Department.

13. The screws going into house members not [the] minimum size required #14 1 ¾ and are not per plans and specifications and have not been approved by the Cochise County Building Department.

14. The bolts are installed from top down and 12 inches apart and are not per plans and specifications and have not been approved by the Cochise County Building Department.

15. The hat bar splices are not long enough and are not properly secured and are not per plans and specifications and have not been approved by the Cochise County Building Department.

16. The roof panels are loose in several areas and are leaking and are not per plans and specifications and have not been approved by the Cochise County Building Department.

Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. On May 19, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 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).[4]

The assigned Registrar Investigator, Mike Nieves (hereinafter “Investigator Nieves”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Nieves stated that he based the terms of the Directive on the Correction Notice issued by the Cochise County Building Department. Investigator Nieves testified that he conducted a compliance inspection at Complainant’s residence on December 22, 2014. Investigator Nieves said that Respondent had performed some corrective work on the new awning at Complainant’s residence but that the corrective work still failed to comply with applicable code requirements and workmanship standards. Investigator Nieves testified that Respondent did not comply with the Registrar’s Directive. Investigator Nieves’ testimony is found to be credible. Ms. Nance testified that Respondent represented that he had two licenses, one for the repair work that she wanted to done on her roof and one for the replacement of the awning on her residence. Ms. Nance said that the total contract price was $2,800.00 for the repair work and the new awning. Ms. Nance said that one of Respondent’s competitors looked at the new awning and said that Respondent needed a permit for the construction project. Ms. Nance then checked with Respondent who said that he did not need a permit for the construction project. Ms. Nance testified that she then checked with the Cochise County Building Department and was informed that all construction projects over $1,000.00 required a building permit. Ms. Nance said that she paid $80.00 for a permit and that the Cochise County Building Department conducted an onsite inspection of Respondent’s work on her residence. Ms. Nance said that the County Inspector informed her that the roof failed to comply with applicable building code requirements. Ms. Nance said that the Inspector said that “it wouldn’t take much to take this whole thing off….” Ms. Nance testified that on June 25, 2014, she wrote an additional check to Respondent in the sum of $500.00 and informed Respondent that she would not pay any more money until his work passed inspection. Ms. Nance testified that she informed Respondent that the new awning material that he was installing looked a lot thinner than the old awning material. Ms. Nance said that the Respondent informed her that the old awning material was no longer manufactured. Ms. Nance testified that Respondent took the awning down and re-installed the awning. Ms. Nance said that the replacement awning installed by Respondent failed the Cochise County Building Department’s inspection. Ms. Nance said that Respondent failed to follow plans and specifications and the replacement awning leaked. Ms. Nance’s testimony is found to be credible. Mr. Nolte testified that he contacted the Planning and Zoning Department for Cochise County before he performed the work on Complainant’s residence and was informed that no permit was required. Mr. Nolte testified that he replaced the awning cover and the hanger rails on the new awning in response to the Registrar’s Directive. Mr. Nolte said that Complainant’s insurance company would not pay to replace the posts at Complainant’s residence and that he was expected to use the existing posts. Mr. Nolte said that the Cochise County Building Department re-inspected the repaired awning. Mr. Nolte acknowledged that the awning failed the second inspection by the Cochise County Building Department. Mr. Nolte testified that he then took the entire awning down. Mr. Nolte said that he was going to install a new awning at Complainant’s residence but the Cochise County Building Department informed him that he could not use the existing posts. Mr. Nolte said there was no way that he could put new posts in because Complainant had a seven foot hedge on a portion of her property. Mr. Nolte said that there was no way for him to dig up the hedge. Mr. Nolte said that he then revised the permit so that he could dig the holes for new posts away from the hedge. Mr. Nolte said that he installed a completely new awning on Complainant’s residence. Mr. Nolte testified that Cochise County Building Department informed him that the new awning was leaking and that he performed repairs on the new awning to stop the awning from leaking. Mr. Nolte said that the Cochise County Building Department then informed him that the flashing had to be replaced so that the flashing goes under the roof edge. Mr. Nolte said that he was not willing to correct the flashing because he disagreed with the Cochise County Building Department’s direction. Mr. Nolte said that he had already spent more than six thousand dollars of his own money to try and correct the awning installation to comply with the Cochise County Building Department’s direction. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The canceled status of Respondent’s Class CR-3.232825-D License does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint. See A.R.S. § 32-1154(C). 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). Respondent failed to obtain a required permit. Complainant then obtained a permit and the original construction work performed by Respondent failed the inspection performed by the Cochise County Building Department. Complainant then filed a complaint against the Respondent with the Registrar, an assigned agency Investigator performed an onsite inspection, and the Registrar issued a written Directive to the Respondent to perform corrective work on Complainant’s residence. Then Respondent, after a failed repair attempt, replaced the entire awning. The replacement awning was then inspected by the Cochise County Building Department. The replacement awning was found not to comply with applicable code requirements and failed the inspection. Respondent then gave up. Inspector Nieves testified that Respondent’s corrective work failed to comply with the Registrar’s Directive and that Respondent’s construction work at Complainant’s residence failed to comply with applicable workmanship standards and code requirements. This Tribunal concludes that Respondent violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that License No. CR- 3.232825-D of William Lee Nolte dba B & N Awnings shall be revoked. 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, October 15, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit C-5 (7/1/14 Cochise County Field Inspection Report). [2] See 7/10/14 Investigation Report in Electronic File. [3] See Exhibit C-8 (8/18/14 Directive). [4] 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.

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