ALJDEC decisions subject to certification as final
2016A-1454-ROC · Registrar of Contractors · 2017-01-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brian George Wakefield,
COMPLAINANT,
v.
Dean Mitchell Handley ,
DBA: 3 Strand Construction & Design,
License No. KB-1.303358-D
RESPONDENT.
No. 2016A-1454-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 24, 2017, at 1:00 p.m.
APPEARANCES: Brian George Wakefield (“Complainant”) was represented by Fidelis V. Garcia, Esq., Garcia Law Group PLLC; Dean Mitchell Handley DBA: 3 Strand Construction & Design (“Respondent”) was represented by Richard G. Erickson, Esq., Snell & Wilmer LLP.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
On or about February 20, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.303358-D for dual building contracting to Respondent.
On or about April 19, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work and then abandoned work on its contract to repair the roof on Complainant’s house at 10500 E. Placita Lima Verde, Tucson, Arizona 85748. Complainant stated that Respondent had refused to respond to Complainant’s repeated attempts to have Respondent return to complete repairs to its work.
According to the complaint, Complainant had paid $2,000.00 of the $2,780.00 contract price. Complainant also acknowledged that he had performed work to correct some of Respondent’s poor work.
The Registrar assigned the complaint to its Investigator, Arlo Houston (“Investigator Houston”) for investigation. On June 17, 2016, Investigator Houston performed a jobsite inspection.
On July 13, 2016, on behalf of the Registrar, Investigator Houston issued a Directive that required Respondent to correct the following workmanship deficiencies:
“Several buckles in layering.”
Bubbling of roofing materials in many areas of the roof
“Not enough tar was used through out especially at corners and edges where material is already de-laminating.”
Roof-ply separation in many areas; material at edges of roof not securely adhered in many areas
The deadline for Respondent to comply with the July 13, 2016 Directive was August 1, 2016, at 5:00 p.m.
After Respondent did not timely comply with the Directive, Investigator Houston sent the complaint to the Registrar’s Legal Department. On August 16, 2016, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that after Complainant filed the complaint, he refused to allow Respondent access to the jobsite to inspect the job or to perform corrective work to comply with the Directive.
The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on January 24, 2017. Complainant submitted six exhibits and testified on his own behalf. Respondent submitted ten exhibits, testified on his own behalf, and presented the testimony of his partner, Timothy Newkirk.
Additional Hearing Evidence
On or about November 22, 2015, Respondent submitted a proposal to construct a 1-layer hot asphalt roof on the newly constructed garage and tie-in to the front porch at Complainant’s house for a contract price of $2,780.00. The proposal stated that Respondent was licensed, bonded, and insured.
Complainant testified that Mr. Newkirk performed some work to comply with the contract. Complainant acknowledged that in late 2015 or early 2016, he applied a 3-ply system over the tie-in between the porch and garage roof. Complainant testified that he was worried about the roof leaking.
No evidence was presented that the roof leaked.
On or about January 29, 2016, Complainant paid Respondent $2,000.for the work that it had performed on the job. On or about February 1, 2016, Respondent submitted a Billing Statement for the remaining $720.00 owed under the contract. The Billing Statement stated that Respondent was licensed, bonded, and insured.
Respondent testified that he has worked in construction for his whole life and has held licenses issued by the Registrar since 1984.
On or about May 9, 2016, Investigator Houston sent a letter to Respondent to notify him of the complaint that Complainant had filed with the Registrar on April 19, 2016.
On or about May 19, 2016, Respondent sent a letter to Investigator Houston, pointing out that between February 21, 2016, and April 28, 2016, Respondent or Mr. Newkirk had made numerous attempts to contact Complainant to schedule repairs, without success. Respondent informed Investigator Houston that on April 26, 2016, Complainant had made a claim to Respondent’s surety, Western National Insurance, for the return of the $2,000.00 that he had paid for the roof plus $5,500.00 to install a new roof over the garage and the house. Respondent explained that Western National Insurance had denied the claim pending the outcome of the complaint that Complainant had filed with the Registrar and that although Respondent was willing to return the $2,000.00 that Complainant had paid to resolve the complaint, Respondent was not willing to pay for a new roof over Complainant’s house and garage.
Investigator Houston testified that although the complaint was initially opened as an unlicensed complaint, since Respondent had obtained a license by the time the complaint was filed, the complaint changed to a complaint against Respondent’s license. Investigator Houston testified that he informed Complainant that Respondent was qualified to perform repairs.
Investigator Houston testified that the July 13, 2016 Directive only required Respondent to correct the parts of the roof that Complainant had not modified, not the tie-in that he had modified.
Investigator Houston testified that on July 14, 2016, Complainant called and stated that he was hesitant to allow Respondent access to comply with the Directive because Respondent had misrepresented itself as being licensed when it contracted to perform the work. Investigator Houston testified that Complainant did not want Respondent to perform repairs to comply with the Directive.
Respondent testified that after the Directive was issued, he contacted Complainant every day through emails or texts, requesting that Respondent be allowed access to comply with the Directive. Complainant either did not respond or imposed conditions on allowing access.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
Complainant established that Respondent’s installation of the roof over the new garage and porch on Complainant’s house did not comply with the Registrar’s or industry standards. Complainant thereby potentially established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
A.R.S. 32-1155(C) provides in relevant part as follows:
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 either:
1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.
2. The contractor's work has been subject to neglect, modification or abnormal use.
Although Complainant applied a 3-ply roofing material to the tie-in, the majority of the roof that Respondent installed was not modified. Respondent did not establish that A.R.S. § 32-1155(C)(2) absolves Respondent of responsibility for any part of the roof that it installed other than the tie-in that Complainant modified. Respondent did establish that between May 9, 2016, when it received notice of the complaint, and May 24, 2016, fifteen days thereafter, Complainant refused to allow Respondent to inspect its work, thereby providing cause to dismiss the complaint under A.R.S. § 32-1155(C)(1).
Because construction is not a perfect art, contractors generally must be afforded at least one opportunity to correct their deficient work before their licenses may be suspended or revoked. Respondent established that Complainant refused to provide reasonable access to allow Respondent to comply with the July 13, 2016 Directive, thereby providing additional cause to dismiss the complaint.
RECOMMENDED ORDER
Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Brian George Wakefield’s complaint in Case No. 2016-1454 against Respondent Dean Mitchell Handley DBA: 3 Strand Construction & Design’s License No. KB-1.303358-D shall be dismissed based on denial of access to perform an inspection or to perform repairs to comply with the Registrar’s Directive.
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 five days from the date of that certification.
Done this day, January 27, 2017.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors