ALJDEC decisions subject to certification as final

2016A-2647-ROC · Registrar of Contractors · 2017-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gaylen John Juelfs,

COMPLAINANT,

v.

Vet Works LLC

DBA: Vetraplex Vets 4 Hire,

License No: 289693, 296010

RESPONDENT.

No. 2016A-2647-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2016

APPEARANCES: Gaylen John Juelfs appeared on behalf of himself. Dennis Bayless, Esq. appeared on behalf of Vet Works LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On October 19, 2016, the Registrar of Contractors (hereinafter “ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 12, 2016, by the Office of Administrative Hearings in Flagstaff, Arizona.

Respondent Vet Works, LLC (“Vet Works”) holds license numbers 289693 and 296010 issued by the ROC.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, ROC alleges that Vet Works may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Vet Works’s license.

Complainant Gaylen John Juelfs entered into an agreement with Vet Works in which Vet Works was to install and grout flagstone in Mr. Juelfs’s backyard.

Vet Works and its subcontractor Tommie Newton installed and grouted flagstone in Mr. Juelfs’s backyard.

A few months later, Mr. Juelfs contacted Vet Works stating that the grout was cracking and the Flagstone was settling.

Vet Works sent its subcontractor Tommie Newton to Mr. Juelfs’s home. Mr. Newton agreed to re-grout the flagstone and fix the settling stones. However, when Mr. Newton came to repair the flagstone, Mr. Juelfs’s turned him away.

On or about June 28, 2016, Mr. Juelfs sent a letter to Vet Works stating, “I am NOT accepting a patch job. There are more cracks appearing every day. I want written information on a concrete base. I also want a waiver signed by you that I will not be billed for any labor or material to complete this job.” See Respondent’s Exhibit 2.

On July 22, 2016, Mr. Juelfs filed a complaint with the ROC alleging workmanship and other deficiencies on the part of Vet Works. In his complaint, Mr. Juelfs wrote that he would not accept a “patch job” to solve the problem.

In response to the complaint, ROC Investigator Chris Allison conducted a job-site inspection on August 16, 2016. However, the Respondent was not present for the August 16, 2016 job-site inspection.

Mr. Allison conducted a second job-site inspection approximately 15 days later. Both parties were present at the second job-site inspection.

Mr. Allison determined that there were cracks that exceeded 3/32nd inch and compound cracks that exceed 1/16th inch, which exceeded workmanship standards. Mr. Allison also determined that there was ponding by the existing outdoor fireplace that exceeded the maximum tolerance of 3/32nd inch.

Mr. Allison issued to Vet Works a Directive dated September 7, 2016.

Through the Directive, ROC ordered Vet Works to remedy the cracks and the ponding by appropriate means no later than September 23, 2016.

The Directive also stated that Vet Works needed to provide proof of

workmen’s compensation insurance and a sample contract that met minimum contract elements as specified in ARS 32-1158(B). However, Mr. Allison testified that Vet Works remedied these violations by the due date listed in the Directive.

On September 19, 2016, Mary Juelfs, the wife of Gaylen Juelfs, left a voice mail message with Vet Works stating, “I wanted to make it clear that to our satisfaction would require you to tear out the stones bring in sand the proper kind of sand and properly compact it and relay the stones and use proper and proper quality cement and then treat the cement.” See Exhibit Respondent’s Exhibit 1.

Mr. Juelfs testified that Gary Rideout, the managing member of Vet Works, contacted him after the directive was issued to set up an appointment. Mr. Juelfs stated that Mr. Rideout stated he would come and repair the problem on the Thursday and Friday prior to the September 23, 2016 deadline. Mr. Juelfs testified that Vet Works never came to the property on Thursday or Friday.

Gary Rideout, the managing member of Vet Works, testified that he did not go to Mr. Juelfs’s home after receiving the directive and prior to the September 23, 2016 deadline, because Mr. Juelfs’s was demanding that he tear out all of the stones and start over. Mr. Rideout testified that he initially called Mr. Juelfs after receiving the directive to schedule an appointment. However, Mr. Rideout testified that Mr. Juelfs continued to ask Mr. Rideout him how he was going to repair the work. Mr. Rideout stated that it would be repaired by any means necessary. Mr. Rideout stated that Mr. Juelfs then handed the phone to his wife who informed him that she would not accept a “patch job.” Mr. Rideout testified that later, on September 19, 2016, he received a message from Gary Juelfs’s wife stating that she would only accept a job where Vet Works would agree to tear out the stones. Mr. Rideout testified that he sent Mr. Newton a few months prior and Mr. Newton was not allowed on the property because Mr. Juelfs would not accept any work other than tearing out the stones.

Mr. Juelfs testified that he was not going to let Vet Works back on his property to do any repair work unless they were going to tear out all of the stones and start over. Mr. Juelfs also gave Vet Works the option of paying him approximately $4,000 in lieu of tearing out the stones and starting over.

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).

The preponderance of the evidence does not show that Vet Works violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. Juelfs did not allow Vet Works access to correct the work. Mr. Juelfs would not allow Vet Works on his property unless Vet Works agreed to by tear out all of the stones and replace the entire flagstone. Mr. Juelfs would not allow Vet Works on his property to do any other corrective work.

The preponderance of the evidence established that Complainant denied Respondent reasonable access to his residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion 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 this matter be dismissed.

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 is forty days after the date of that certification.

Done this day, January 3, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors