ALJDEC decisions subject to certification as final

2015A-2252-ROC · Registrar of Contractors · 2016-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2016, at 1:00 p.m. APPEARANCES: Cynthia Anne Sullivan (hereinafter “Complainant” or “Ms. Sullivan”) was represented by her attorney, E. Duane Weston, Esq. Herman’s Builders (hereinafter “Respondent”) was represented by its attorney, David W. Williams, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(2), 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 Nos. 116716 & 191441 issued by the Registrar. Respondent’s License Nos. 116716 & 191441 were current on May 25, 2016. This is a residential matter in which on or about January 20, 2015, Respondent began performing construction work at Complainant’s residence at 1670 E. Cienega Drive, Williams, Arizona 86046 (hereinafter the “residence”). On or about May 20, 2015, Complainant filed a Complaint against Respondent with the Registrar. Complainant’s Complaint provides, in relevant part, as follows: The reason a written contact is not being provided is because Herman Griego of Herman’s Builders did not provide a written contract…. The work to be performed was to build two decks, a large front deck and a smaller back deck, as specified in the plans approved by Coconino County. When Herman’s Builders was hired we had not yet decided on the material for the railings, balusters, and deck flooring, but the other materials were specified in the plans….Complaint Items:

Deck:

1. Herman Griego did not follow the deck plans approved by Coconino County. 2. He did not do work on deck in timely manner – started Jan 2015, incomplete Mar 2015. 1 or 2 weeks would go by with no work on deck. 3. He had one worker framing deck in Jan & Feb. 4. He lied about costs of deck materials – said he allowed for $3,000 for deck (Trex), redwood balusters, and railings. 5. He never bought roofing materials but he had all money for materials – owes us approx. $4,000 for roofing materials. 6. Deck, which is 90% completed, has to be torn down and redone as per plans, per Coconino County Inspector (May 13, 2015). 7. We bought high qualify Behr Solid stain and applied 2 coats on the exposed wood and want the same stain used when the deck is redone…. 8. …electrical wires not in junction box in pump house, not safe.

7. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. 8. On June 29, 2015, a written Directive was issued by the Registrar. 9. 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. “Herman Griego did not follow the deck plans approved by Coconino County.”

Investigator’s Observation: The Respondent has departed from the county approved plans and specifications, resulting in the issuance of a “Stop Work Order” by Coconino County Building Department. Respondent shall remedy all violations found by the Coconino County Building Official.

2. Electrical wires not in junction box in pump house, not safe.”

Investigator’s Observation: Respondent shall correct the condition.

10. Complainant filed an addendum to her complaint and on August 17, 2015, the Registrar issued a second written Directive. The second written Directive provides, 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:

Complaint Item 2: “The work is ugly, unprofessional and unacceptable.”

1. Roof beams are too short, rafter were cut for the original, longer beams. 2. Front main beams at SE corner is low, SW corner is high by 3/16” to ½”. 3. Blocks on cross beams on top of main beams are different heights (5.5” to over 6”). 4. NW support beam not plumb, blocking sticks out and is not square. 5. 2x10 fascia should be 2-2x8’s per plan, should not extend past 6x6 corner posts (Trex was cut to be even with the 6x6 posts). 6. Main beams still sag in middle. 7. Decorative T-straps should be Simpson OHT ornamental connectors (see back center post). 8. Center upright 6x6 beam ornamental straps are overlapped. 9. Bird’s mouth cuts on rafters do not meet with beams. 10. Center post by house needs center cap, not end cap, needs ornamental connectors. 11. Back porch fascia not even with 6x6 posts and has notices cut in it. 12. See plans for Simpson post caps required for all roof beams, (4- PC66, 2 ECC66, 4 ECC66 & HW68). Complaint Item 3: “Herman had employees and family members working here with no liability or workman’s comp insurance.

Complaint Item 4: “Level beams, no sagging beams on deck.”

Complaint Item 5: “Beams same length near fascia on large deck (not cut as short as the shortest beam).”

Complaint Item 6: “Decorative metal straps centered on beams.”

Complaint Item 7: “Bolts cut flush with beams.”

11. Respondent declined to comply with the August 17, 2015 written Directive. 12. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. 13. On October 29, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained three charges: Charge 1: A violation of A.R.S. § 32-1154(A)(2).[1] Charge 2: 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).[2]

Charge 3: A violation of A.R.S. § 32-1154(A)(22).[3]

Testimony 14. The assigned Registrar Investigator, Steve Philpott (hereinafter “Investigator Philpott”), testified that he had performed the onsite inspections and that he had prepared the written Directives. Investigator Philpott stated that no compliance inspection was performed because Herman Griego notified him that the Respondent was not going to comply with the August 17, 2015 written Directive. 15. Investigator Philpott testified that Respondent had passed an inspection by the local building authority and that Respondent had remedied the code violations found by the Coconino County Building Official. Investigator Philpott stated that he performed a prehearing inspection at Complainant’s residence on January 20, 2016. Investigator Philpott stated that the Complainant’s deck was still incomplete and that Respondent had failed to comply with the August 17, 2015 written Directive. Investigator Philpott said that Respondent’s construction work on Complainant’s deck failed to meet minimum workmanship standards. 16. Investigator Philpott opined that Respondent did not comply with the Registrar’s Directive. Investigator Philpott said that he was present when Complainant’s boyfriend allegedly threatened Mr. Griego. Investigator Philpott said that a criminal investigator with the Registrar’s office was also present and that the entire episode was recorded. Investigator Philpott opined that Complainant’s boyfriend’s statements were not a threat against Mr. Griego. 17. Investigator Philpott’s testimony is found to be credible. 18. Steven R. White (hereinafter “Inspector White”) testified that he is now a plans examiner for Coconino county. Inspector White stated that when he performed an onsite inspection at Complainant’s residence he was the lead inspector for Coconino County. Inspector White stated that the Respondent’s construction work on Complainant’s decks did not comply with the county approved plans and that the county issued a Stop Work Order. Inspector White said that, after several onsite inspections and after several corrections were requested, the Respondent finally complied with the county’s requirements and he signed off on the rough trades portion of the decks. Inspector White said that the only item left that was a code requirement was the construction of guard rails for the decks. 19. Inspector White’s testimony is found to be credible. 20. Ms. Sullivan testified that Dan Smith, an unlicensed individual, was functioning as her general contractor for the construction project at her residence and that he had obtained bids for the construction work at her residence. Ms. Sullivan stated that Respondent was the low bidder. Ms. Sullivan said that she had no written contract with Respondent. Ms. Sullivan said that all of her contacts regarding the decks were with Herman Griego (hereinafter “Mr. Griego”) directly. Ms. Sullivan said that Respondent’s construction work on the decks and roof decks at her residence did not comply with plans and specifications and that the construction work was not performed in a workmanlike manner. Ms. Sullivan said that Respondent had unlimited access to the plans and specifications for the construction of the decks at her residence. Ms. Sullivan said that the Respondent had not been denied access to her residence and she denied making any threats or uttering any racial slurs against the Respondent. 21. Mr. Griego testified that Respondent was performing earth work for Don Smith, the unlicensed individual that Complainant was using a general contractor. Mr. Griego stated that he believed that Don Smith was a licensed contractor because he had previously worked for Don Smith on other construction projects. Mr. Griego said that Respondent was not given a full size copy of the plans and specifications for the Complainant’s decks. Mr. Griego said that Respondent complied with the county inspector’s directive and corrected all structural items on Complainant’s decks. Mr. Griego said that Complainant’s significant other fired him from the construction project. Mr. Griego said the Complainant’s significant other had threatened him and uttered racial slurs against him. Mr. Griego said that he did not comply with August 17, 2015 written directive because he thought the project was completed and because he felt threatened. Mr. Griego said that he did not dispute the corrective items set forth in the August 17, 2015 written directive. Mr. Griego acknowledged that Respondent did not comply with the August 17, 2015 written directive. 22. Bill Leap (hereinafter “Mr. Leap”) testified that he is Complainant’s fiancé. Mr. Leap denied ever threatening Mr. Griego and denied uttering any racial slurs towards Mr. Griego. Mr. Leap stated that he did tell Mr. Griego that Respondent was fired from the water tank project. Mr. Leap denied that he had fired Respondent from the deck project. Mr. Leap said that there was no denial of access to the Respondent. 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). Investigator Philpott credibly testified that Respondent’s construction work on Complainant’s decks failed to meet minimum workmanship standards and that Respondent failed to comply with the Registrar’s August 17, 2015 written Directive. Inspector White credibly testified that the Respondent’s construction work on Complainant’s decks did not comply with the county approved plans and that the county issued a Stop Work Order. Complainant established by a preponderance of the evidence that Respondent’s construction work on Complainant’s decks did not comply with applicable plans and specifications and did not comply with applicable workmanship standards. Complainant established that Respondent failed to comply with the Registrar’s August 17, 2015 written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(2), 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, Respondent’s License Nos. 116716 & 191441 shall both be suspended for five (5) days. It is further recommended that Respondent pay the sum of $500.00 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, May 25, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(2) provides, in relevant part, as follows:

A. 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: . . . . 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [2] 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.

[3] 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.

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

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