ALJDEC decisions subject to certification as final

2016A-4769-CHC-ROC · Registrar of Contractors · 2017-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James J. Caron,

COMPLAINANT,

v.

Wm A Clark Construction Inc.,

License No: 080678

RESPONDENT.

No. 2016A-4769-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 14, 2017

APPEARANCES: Complainant James J. Caron appeared on his own behalf. William A. Clark, Owner and Qualifying Party, appeared on behalf of Respondent Wm A Clark Construction Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Wm A Clark Construction Inc. (Respondent) is the holder of License No. 080678 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 5, 2015, James J. Caron (Complainant) signed a contract with Respondent for, among other things, extending balconies, repairing stucco, and installing doors.

On or about November 28, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 16, 2015.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Poor craftsmanship, new balcony leaks rain water far worse than before it was replaced

Complaint Item 2: Tile falling off edge of bedroom balcony

Complaint Item 3: New doors leak water every time it rains

-Living room door has inconsistent reveal at top arch causing top bolt not to secure when locked and daylight to be seen. Master bedroom slider door is allowing water entry that has caused wood flooring damage. All doors should be sealed properly when closed and installed per manufacturer specifications.

Complaint Item 4: Water is still leaking down interior walls in lower room

Complaint Item 5: Missing exterior lock mechanism on bathroom door. Not able to lock door.

Complaint Item 6: Damaged bathroom marble countertop due to etching from painters chemical spill

Complaint Item 7: Underside of balcony stucco cracking everywhere, must be redone

Complaint Item 8: Water leaking at floor level under carpet in lower room

Complaint Item 9: Addendum: holes in stucco from removed rail at balcony not repaired

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Gunstra was notified that Respondent was still working on the project and Complainant wished to extend the deadline for compliance. Approximately one week later, Respondent stated the work was still not done. A little more than one week after that, Complainant stated that some of the work had been done, but some still remained to be done and he did not wish to extend the deadline any longer.

On February 6, 2017, 39 days after the initial written directive was issued, Investigator Gunstra performed a compliance inspection; Respondent was not present at the compliance inspection. At that inspection, Investigator Gunstra determined that seven of the nine items in the written directive were not in compliance with the Registrar’s standards. Investigator Gunstra found that Item 2 and Item 6 above were corrected in compliance with the Registrar’s standards. Investigator Gunstra forwarded his findings to Respondent.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Gunstra testified that the leak has been addressed, but the cracked stucco and cracked tiles were not properly repaired. As for the doors, Investigator Gunstra indicated that the leaking could be the result of installation problems or manufacturing problems. Investigator Gunstra stated that if it was installation problems, Respondent needed to fix it; if it was manufacturing problems, Respondent needed to do warranty work, but Respondent had done neither. Investigator Gunstra also noted that it appeared some of the tiles on the patio were cracked during the repair work, meaning Respondent did not correct the issue by appropriate means.

Complainant testified that Item 5 had also been resolved at the time of the hearing. Complainant indicated that the initial project was supposed to take six to eight weeks, but was not yet done in December 2015. Complainant testified he had paid to have water damage fixed at his own expense two or three times. Complainant stated he just wanted the work done and to enjoy his home again.

Mr. Clark testified that Respondent tried very hard to correct the items on the list and believed that the work had been done properly. Mr. Clark indicated that Respondent was not allowed to attend the compliance inspection, and therefore could not address the work it had done. Mr. Clark also noted that Investigator Gunstra found cracked tile during the compliance inspection and that he felt he was “shooting at a moving target.”

Administrative notice is taken of Respondent’s prior License record on May 4, 2017. Such prior License record reflects that Respondent’s License No. 080678 was first issued on November 2, 1988, is current, and was suspended from October 11, 2016, through December 5, 2016, pending compliance. Such prior License record also reflects that there was open complaint, one resolved/settled/withdrawn complaint, and one complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not compete the corrective work in compliance with the Registrar’s standards following the Directive being issued. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 080678 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

Done this day, May 4, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors