ALJDEC decisions subject to certification as final

2016A-3725-ROC · Registrar of Contractors · 2017-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kimberly Parks,

COMPLAINANT,

v.

B A S Construction and Drywall LLC dba,

R N Construction and Payne Concrete,

License No: 247812

RESPONDENT.

No. 2016A-3725-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 15, 2017, at 8:30 a.m.

APPEARANCES: Kimberly Parks (“Complainant”) appeared on her own behalf; B A S Construction and Drywall LLC dba, R N Construction and Payne Concrete (“Respondent”) appeared through Bradley Alan Schupbach, its qualifying party/ member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

According to the Registrar of Contractors’ (“the Registrar’s”) public website, on or about August 2, 2008, the Registrar issued License No. B.247812-R for general residential contracting to Respondent.

On or about September 22, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work and failed to construct certain items while reconstructing Complainant’s house at 1881 W. Grasshopper Ln., Chino Valley, Arizona 86323.

According to the complaint, Respondent had been paid $181,160.36 of the $218,500.00 contract price.

The Registrar assigned the complaint to its Investigator, Jim Dimond, for investigation. On October 31, 2016, Investigator Dimond performed a jobsite inspection.

On November 4, 2016, on behalf of the Registrar, Investigator Dimond issued a Directive that required Respondent to correct the following workmanship deficiencies:

Item 1- Throughout house- fix uneven floor tile and grout. Master & Guest baths, shower & tub-fix uneven tile and grout.

The respondent shall correct the floor tiles designated at the inspection that have lippage outside of ROC workmanship standards.

Additionally, at the master shower, the wall tiles are not flat with each other as also required by ROC standards.

Grout voids will be corrected one time, homeowner maintenance thereafter.

Item 2- Roof- sags, is wavy shingles are curling & overhang by 1”

Per GAF manufacturer installation specifications, the overhang cannot exceed 3⁄4”.

The respondent is to correct the condition in an appropriate manner.

Item 3- Living Room and laundry entrance- properly seal exterior doors, install high grade storm doors, Kim to select.

There is no specific product called out regarding the doors and therefore the doors are not required to be changed out.

The door seals however do allow a small amount of daylight and shall be corrected in an appropriate manner one time in the first year. This is homeowner maintenance thereafter.

Item 4- Interior & exterior painting- apply 2nd coat, clean paint spray, tape & stucco globs from exterior windows and doors

The interior exhibits areas of inadequate coverage and touch up paint that doesn’t closely match as required. The respondent is to correct the condition in an appropriate manner.

There is some minor touch up required at the exterior and the respondent shall correct the issue in an appropriate manner.

Item 5- Living Room- replace window screens that do not fit. Master bed & dining room- install door screens.

The respondent is to correct the condition in an appropriate manner.

Item 6- Garage hall and master bath-remove walls per site plan.

The small bump out at the hall and the added wall in the master bath were added without any approved changes on the plans.

The respondent is to correct the condition in an appropriate manner.

Item 7- Guest bath- fix tub & toilet door to swing into room per site plan, install vanity trim.

The plan shows the door to swing in.

Item 12- Guest bed & office- replace 3 windows with same style of windows installed throughout house. 1- office, 2- GB

The respondent is to correct this condition in an appropriate manner.

Item 18- Driveway gate- reweld cross bar that was cut to allow heavy equipment entry.

The respondent is to correct the condition in an appropriate manner.

Item 19- All trim work- fill nail holes, sand, and apply 2 coats paint.

The respondent is to correct the condition in an appropriate manner.

Item 20 – Kitchen cabinets- install crown molding trim, fill nail holes and sand, use touch up markers as needed.

The respondent is to correct the crown molding in an appropriate manner.

Item 26- West elevation- fix peeling paint on side trim

The respondent is to correct the condition in an appropriate manner.

Item 28- North elevation- install light fixture by laundry room door correctly

The respondent is to correct the condition in an appropriate manner.

Item 31- Properly seal dryer vent, exterminate spiders.

The respondent shall correct the wall penetration in an appropriate manner.

Item 35- Center on wall

The respondent is to correct the master commode in an appropriate manner.

Item 39- Fix electrical installation of ceiling fan, light & fan wired to the same switch.

The respondent is to correct the condition in an appropriate manner.

Item 40- Ends of granite tops in kitchen are not polished.

The respondent is to correct the condition in an appropriate manner.

Any items not listed lack sufficient evidence to support a violation of workmanship standards.

The deadline for Respondent to comply with the November 4, 2016 Directive was November 24, 2016, at 5:00 p.m.

On December 22, 2016, Investigator Dimond issued a second Directive to Respondent that was identical to the November 4, 2016 Directive. The deadline for Respondent to comply with the December 22, 2016 Directive was January 6, 2017, at 5:00 p.m.

After Respondent did not timely comply with the November 22, 2016 Directive, Investigator Dimond sent the complaint to the Registrar’s Legal Department. On January 23, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely, A.R.S. §§ 32-1124(B) and 32-1158(B), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, denying any statutory violation.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A videoconference hearing was held on May 15, 2017 from the Registrar’s Flagstaff office. Complainant submitted over 100 exhibits and testified on her own behalf. Respondent presented the testimony of its qualifying party/member, Brad Schupbach. Investigator Dimond testified.

/ / / /

Additional Hearing Evidence

Complainant’s house was substantially destroyed in a fire, down to the slab. Her home insurer, Country Financial, prepared a 32-page Estimate of Dwelling Repairs (“Country Financial Estimate of Dwelling Repairs”) that included certain items and line item prices in the total that it would pay to reconstruct the residence.

On November 24, 2014, Respondent submitted a proposal to Complainant to reconstruct the house at 1881 W. Grasshopper Lane that provided in relevant part as follows:

New Construction on existing slab.

Re-Build said home on existing slab.

House to be rebuilt W/ Chino Valley approved building permits and Yavapai county Guide lines and building codes.

RN Construction will build said home to original state along with all new building codes and new materials.

New plans will be drawn and submitted for permits by the Town of Chino Valley Set by Yavapai County rules and guidelines.

Total for said work to be in the amount of $218,500 (two hundred eighteen thousand five hundred dollars and no cents.)

Payments to be decided at start of work.

Although Respondent’s November 24, 2014 proposal included its license number, the number was not preceded by the acronym “ROC.”

Investigator Dimond testified that Items 6, 7, and 12 on the Directives required Respondent to correct the walls in the garage hall/master bath, the direction of the door swing in the master bath, and the crown molding to conform to plan.

Mr. Schupbach testified that Complainant approved the plans that he submitted to the local building authority to obtain the permit, that Respondent substantially built the house per plan, that a Certificate of Occupancy was issued for the house, and that Complainant has been living in the house for a year and a half.

Complainant argued that the parties’ contract included all the items on the Country Financial Estimate of Dwelling Repairs, regardless of whether the items were on the plans that the local building authority had approved when it issued the permit.

Complainant also submitted numerous photographs and video-recordings of items that Investigator Dimond did not require Respondent to correct in the November 4, 2016, and December 22, 2016 Directives. Complainant testified that she had spoken to contractors who told her that the items did not comply with industry standards.

The Registrar’s electronic file contains an email that Complainant sent to Investigator Dimond dated November 22, 2016, in relevant part as follows:

Wanted to include you in recent communication I initiated to Brad, which also provides an update to potential work start date. As you can read below in my initial email to Brad on 11/16, based on very unpleasant past work conditions and a confrontational and verbally abusive conversation back on 21 December 2015, I am not comfortable having Brad and his crew back working in my home until I legally protect myself from future occurrences.

As a result I am preparing a contract agreement outlining acceptable and unacceptable professional behavior expected when Brad and RN workers are in my home, and other miscellaneous standard construction guidelines. Brad must review, sign and return this contract to me prior to work commencing. In a separate document, I am also outlining the terms of how the final escrow payment will be disbursed . . . . This document is to once again formalize the binding terms to ensure that my sister, Pam, is finally reimbursed an outstanding balance of $6k for out-of-pocket expenses she incurred and monies owed to me are reimbursed since Brad refused to no longer fund the project in the final 3 weeks. This document will also need to be signed and returned to me prior to work commencing.

Going forward I am taking on the responsibility of project managing the scheduled tasks. This will eliminate any ambiguity and ensure all essential information is properly documented, acknowledged, and agreed to.

On November 23, 2016, Investigator Dimond responded to Complainant’s email, in relevant part as follows:

It appears that due to an alleged incident 11 months ago, that you are going to require a written contract outlining required behavior. This document would be inappropriate and the contractor is not required to sign it. If the conditions are such that the special requirements are needed due to a contractors alleged behavior, maybe the ROC complaint process is not the proper venue. Other venues are available that have far less required contact between the parties.

Any insistence requiring a written contract to be signed, as you relay below, will result in the complaint being closed.

For the record, I suggested that the parties put together a schedule that facilitates completion of the work in blocks of time but that also facilitates the ability for you to perform your work at home duties in blocks of time also. It is not an opportunity to demand when access is allowed. That said, I know both parties have work to do and you work from home so some consideration [is] due but not technically required.

. . . .

The courts have long held that the designated work week is Monday thru Friday 8:00AM to 5:00PM. If scheduling obstacles persist, I will reschedule the required date of completion and denial of access may become an affirmative defense.

The ROC does not get into money matters and any financial disputes will require the parties to resolve them in another venue.

. . . .

It may be prudent for communications between the parties be via email in order for the conversations to be memorialized.

Investigator Dimond testified that he issued the Directive a second time to provide Complainant with due process and to allow her to provide access to Respondent to complete the repairs required by the Directive.

Mr. Schupbach testified that because Complainant worked from home, she stated that Respondent could only perform repairs between 8 a.m. and 12 p.m. on Monday, Wednesday, and Friday, and that Respondent’s workmen would have to not make any noise. Mr. Schupbach testified that it would be impossible for Respondent to repair many of the items on the Directive quietly, especially removing the tile. Mr. Schupbach testified that although he requested dates, Complainant never provided firm dates on which Respondent could perform repairs.

Complainant testified that she did not deny access for Respondent to perform repairs to comply with the Directive. Complainant did not submit and the electronic file in this matter does not contain any communication from Complainant that unequivocally and unconditionally states that she will provide access for Respondent to perform repairs on a date certain.

Investigator Dimond testified that, based on his communications with the parties, he believes that Complainant continued to deny access to Respondent to comply with the December 22, 2016 Directive.

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 proposal, which became the parties’ contract, did not comply with A.R.S. §§ 32-1124(B) or 32-1158(B), thereby providing cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12).

Investigator Dimond credibly testified that Respondent had not constructed the walls in the garage hall/master bath, the direction of the door swing in the master bath, and the crown molding per plan, Items 6, 7, and 12 on the Directive. Complainant did not establish that the parties’ contract required Respondent to construct the additional items on Country Financial Estimate of Dwelling Repairs. Nonetheless, Investigator Dimond’s testimony potentially establishes cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

The November 4, 2016 and December 22, 2016 Directives include seventeen items that, in Investigator Dimond’s opinion, did not comply with the Registrar’s or industry standards. Although Complainant did not establish other items that required correction, the Directives 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, in the items included on the Directives.

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 November 4, 2016 and December 22, 2016 Directives, thereby providing cause to close the complaint and to allow Complainant to seek relief a judicial forum that may be more appropriate to the relief she seeks. It does not appear that Complainant was able to work with or cooperate with Respondent during the complaint process.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Kimberly Park’s complaint in Case No. 2016-3725 against Respondent B A S Construction and Drywall, LLC DBA: R N Construction and Payne Concrete’s License No. B-247812-R shall be closed based on denial of access to perform repairs to comply with the Registrar’s Directive.

It is further ordered that Respondent shall provide written proof to the Registrar that it has brought its proposal forms into compliance with A.R.S. §§ 32-1124(B) and 32-1158(B). If Respondent fails to provide such written proof that is satisfactory to the Registrar within thirty days after the effective date of the order, Respondent’s License No. B-247812-R shall be suspended until it provides such satisfactory written proof.

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, May 17, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors