ALJDEC decisions subject to certification as final

2016A-549-ROC · Registrar of Contractors · 2016-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joel J Errante,

COMPLAINANT,

v.

Masonry of Arizona Inc.,

License No. B.202091-R,

RESPONDENT.

No. 2016A-549-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 30, 2016, at 8:30 a.m.

APPEARANCES: Joel J. Errante (“Complainant”) was represented by William J. O’Leary, Esq., O’Leary Eaton, PLLC; Masonry of Arizona Inc. (“Respondent”) was represented by Kenneth B. Vaughn, Esq., Grant & Vaughn, PC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

On or about December 21, 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.202091-R for residential general contracting to Respondent.

On or about February 16, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on a series of agreements to perform certain work at Complainant’s house at 10872 E. ManzanitaTrail, Dewey, Arizona 86327.

Complainant attached a written narrative to his complaint in which he alleged certain workmanship deficiencies in the work that Respondent had performed. Complainant also attached a copy of Respondent’s written proposals, as follows:

A proposal dated December 1, 2014, for “block work on the east side of the home, appr. 82 [lineal feet to] match block on west side” for $3,400.00 and taking out 1,085 square feet of concrete and pouring a new 420 square foot slab from the house to the street for $5,850.00. Complainant signed to accept Respondent’s December 1, 2014 proposal.

A proposal dated February 7, 2015, for three concrete slabs having dimensions of 28’ 6” x 10’ 2”, 13’ x 10’, and 20’ x 13’ 8”, raise the rear fence to match the east side of the back wall and put in a fence, whose dimensions were not specified, and remove block under the front window for $7,790.00. Complainant signed to accept Respondent’s February 7, 2015 proposal.

A proposal dated March 3, 2015, for a pergola having lattice work and 4” x 6” “rough sawn lumber” for $3,830.00. Complainant did not sign the March 3, 2015 proposal. As noted below, Respondent constructed the pergola and Complainant paid Respondent for it.

A second proposal dated March 3, 2015, to drain from the back corner to the front under the slab, construct steps out to the back alley, fill in the fence with mortar, add 8” block to fence, stucco the side of the old steps, pay for the permit, change lumbar package in an unspecified way, and pour the corner walkway, for a total price of $1,080.00. Complainant did not sign the second March 3, 2015 proposal. Complainant apparently did not include any of the work on the second March 3, 2015 proposal in the complaint that he filed with the Registrar. Complainant paid Respondent for the work described in the proposal.

A proposal dated May 25, 2015, for extra charges for design and lumber and to cut back the root line, for a total charge of $920.00. Complainant did not sign the May 25, 2015 proposal. Complainant paid Respondent for the work described in the proposal.

None of the five proposals contained Complainant’s address, which was the jobsite address, an estimated completion date, apprised Complainant of his right to file a complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), or contained the Registrar’s website address or telephone number. Although the proposals contained Respondent’s license number, it was not preceded by the acronym “ROC.”

The Registrar assigned the complaint to its Senior Investigator, Jim Dimond (“Investigator Dimond”) for investigation. Investigator Dimond performed a jobsite inspection on March 17, 2016. Both parties attended the initial jobsite inspection.

On May 12, 2016, Investigator Dimond issued a Directive that was addressed to both Complainant and Respondent. The Directive required Respondent to correct by appropriate means certain workmanship deficiencies, in relevant part as follows:

Item 1- Concrete slabs poured have panels that are in excess of 100 sq ft (or 10’ X 10’ sections) in violation of ROC Workmanship standards. This does not include the 2 panels just in front of the garage door.

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

Item 2- The respondent’s contract doesn’t meet the requirements set forth by ARS 32-1158.

The respondent is to correct his contracts and provide a compliant copy to the investigator within the mandated time frame.

Item 3- The perimeter CMU wall at the north does not meet ROC standards regarding uneven surfaces and shall be corrected in an appropriate manner.

Item 4- The gutter downspout has not been reconnected and shall be corrected in an appropriate manner.

Item 5- Fascia at the pergola is poorly attached and shall be corrected in an appropriate manner.

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

The deadline in the Directive for Respondent to correct its work was on or before 5:00 p.m. on May 31, 2016. Complainant testified at the hearing that he never received the Directive.

On July 22, 2016, Investigator Dimond sent the complaint to the Registrar’s Legal Department. On July 25, 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, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(22).

Respondent’s attorney filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that Respondent had revised its contract form to bring it into compliance with A.R.S. § 32-1158(B) and that Complainant had refused to provide reasonable access for Respondent to perform the repairs.

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 November 30, 2016. Complainant submitted two exhibits, including an exhibit that consisted of 37 photographs of the jobsite, and presented the testimony of two witnesses: (1) Himself; and (2) Gregory Lazzell (“Mr. Lazzell), the qualifying party of Lazzell Construction Inc., License No. B-2.265766-C for small commercial general contracting, who testified as Complainant’s expert. Respondent presented the testimony of its qualifying party/officer, Kelly Vaughn (“Mr. Vaughn”) and submitted 22 exhibits. Investigator Dimond also testified.

Hearing Evidence

Contract Terms

Investigator Dimond sent Respondent a warning letter, informing it that A.R.S. § 32-1158(B) required contractors to include certain elements in their contracts with property owners. After the Directive was issued, Respondent’s attorney sent Investigator Dimond several letters showing alterations to Respondent’s form contract to bring it into compliance with A.R.S. § 32-1158(B).

Investigator Dimond testified that if Respondent was using the corrected contract form, it complied with A.R.S. § 32-1158(B).

Access

Investigator Dimond reported that Complainant was “very animated at the inspection and angrily stated several times that he was going to get [Respondent’s] license.” Investigator Dimond’s testimony was consistent with his report.

Investigator Dimond testified that at Mr. Vaughn’s request, he extended the time for Respondent to comply with the May 12, 2016 Directive. Investigator Dimond testified that Mr. Vaughn was in regular contact with him by email and telephone about Respondent’s difficulty in arranging a time to perform the repairs provided by the Directive that was acceptable to Complainant.

Complainant testified that the gate was always open and that Respondent could have come at any time to perform repairs.

Mr. Vaughn testified that because his relationship with Complainant had become contentious, he did not think that he could just show up at Complainant’s house unannounced to perform repairs. Mr. Vaughn testified that Complainant did not return his telephone calls, emails, or letter attempting to schedule repairs.

Investigator Dimond advised Mr. Vaughn to send Complainant a registered letter setting a time to perform repairs. On June 29, 2016, Mr. Vaughn sent Complainant a handwritten note by certified mail stating that Respondent could perform repairs the week on July 25, 2016, and requesting that Complainant return the green card so that Mr. Vaughn would know the date was okay.

Investigator Dimond testified that he checked with the United States Postal Service and confirmed that the certified letter had been delivered. After Complainant did not return the green card, Investigator Dimond referred the matter to the Registrar’s Legal Department.

On July 25, 2016, Mr. Vaughn and a helper went to Complainant’s house to begin performing the work required by the May 12, 2016 Directive. Mr. Vaughn indicated to Complainant that he would saw-cut the slabs that were more than 10’ x 10’ to make control joints. Complainant stated that if Mr. Vaughn tried to cut the slabs, Complainant would go get his gun and prevent Mr. Vaughn from saw-cutting the slabs. Mr. Vaughn left the property and called the Yavapai County Sheriff’s Office. Deputy F. Alvarez reported his investigation of the incident in relevant part as follows:

[Mr. Vaughn] reported that he went to 10872 E. Manzanita Trl to repair some work he had done there for the owner. He was there at the request of the [Registrar] for a complaint made by the owner on work he had done. When he showed up at the address he was going to start to fix the problem and the owner, [Complainant], came out and asked him what he was doing. He told him he was going to make some cuts to a slab he had made to fix the issues he had complained about. [Complainant] told him not to do it that it . . . would not fix the issue. They argued over this and [Complainant] then told him if he did not leave he would get this gun.

[Mr. Vaughn] did not see a gun and [Complainant] did not go get a gun. [Mr. Vaughn] said when [Complainant] said this he left the house.

There is an ongoing issue with the work that was done at this address. I advised [Mr. Vaughn] not to go back and contact the [Registrar] and advise them he could not go back to fix his work because of the problem between [him] and the home owner. . . .

I then went to the address and contacted [Complainant]. [Complainant] showed me the work he was upset about. He told me the same story that [Mr. Vaughn] did. [Complainant] said he asked [Mr. Vaughn] not to cut the slab and Kelly would not stop he was going to cut his slab without [Complainant] saying it was okay. [Complainant] said after he asked several times for [Mr. Vaughn] to stop he did tell [Mr. Vaughn] if he did not stop his work he would go get his gun. I advised [Complainant] that he could not do this. [Complainant] said he felt he had no choice but to try and defend his property from further damage by [Mr. Vaughn].

. . . .

Both Parties are working with the registrar of contractors and should have no further contact at this time. . . .

Investigator Dimond testified that saw-cutting a slab is an appropriate way to install a control joint after the slab has been poured. Investigator Dimond testified that after the cut is made, epoxy may be applied to cracks.

Investigator Dimond testified that the Registrar takes the position that by virtue of possessing a license, contractors have the professional skills and knowledge to correct deficient workmanship. After a homeowner has filed a complaint with the Registrar, he does not have the right to direct the manner that a licensed contractor will use to perform repairs. Instead, after allowing access for the contractor to perform repairs, the homeowner may request a compliance inspection if the contractor has failed to correct workmanship deficiencies to bring them into compliance with the Registrar’s and industry standards.

Investigator Dimond testified that the Registrar does not require contractors to perform repairs after threats have been made to their personal safety. Investigator Dimond testified that if he had not already referred the complaint to the Registrar’s Legal Department, the July 25, 2016 incident would have caused him to close the complaint rather than referring it for a hearing. Investigator Dimond testified that after the July 25, 2016 incident, he told Mr. Vaughn not to return to the jobsite.

Complainant testified that on July 25, 2016, after he threatened to get his gun if Respondent attempted to saw-cut a control joint into the slab, he expected Respondent to remain on site and to repair the other items of deficient workmanship.

Alleged Workmanship Deficiencies

Respondent did not challenge the items that the May 12, 2016 Directive required it to correct.

Investigator Dimond opined that to correct the block fence to comply with the Registrar’s standards, Respondent probably would have to take down and rebuild the field between the fence columns.

Investigator Dimond and Mr. Lazzell testified that the discoloration on the driveway slabs in the front of the house was probably caused by Respondent leaving tarps or other covering too long on the concrete while it cured. Inspector Dimond testified that the discoloration would probably lessen over time.

Complainant testified that the discoloration has not lessened and would prevent him from selling the house or force him to sell the house at a discount because the concrete slabs were unsightly.

Mr. Lazzell testified that he has never seen concrete discoloration like he saw at Complainant’s house. If it had been his job, he would have redone the slab or discounted the price.

The Registrar’s Workmanship Standards for Licensed Contractors (June 2009) for concrete provides under the title, “Natural Concrete – Color and Shade Variations,” as follows:

Color and shade variations are inherent in all Portland cement-based products. These variations may occur and are generally acceptable. These differences can be attributed to a wide variety of causes. Some causes include variable jobsite conditions and changes in aggregate source, age, degree of curing, and specified slab substrate.

Investigator Dimond testified that concrete slabs in a driveway are meant to provide a surface for parking vehicles, not to be pretty.

Investigator Dimond testified that the Registrar’s standards require that after a half hour, puddles on a slab should be no more than 3/32ths of an inch deep, the width of a nickel. Investigator Dimond testified that at the jobsite inspection, he set a level on the slab and that the dip in the pergola slab was minimal. Inspector Dimond testified that if he had believed drainage on the slab was questionable, he would have performed a water test, but that the variation that he saw was not even close.

Complainant submitted a photograph of puddles on the slab. Complainant testified that the puddles remained several hours after a rain.

Mr. Lazzell testified that he saw dirt that was evidence of puddling on the pergola slab, but that he did not perform a water test.

Complainant testified that he left gates out and told Mr. Vaughn that he wanted Respondent to cut an opening in the fence that would match the gates.

Mr. Vaughn testified that he never saw the gates until Complainant filed the complaint against Respondent with the Registrar. Mr. Vaughn testified that Respondent provided a gate that fit the opening, but that Complainant did not like it and removed it.

Complainant testified that he wanted Respondent to construct a slab that was the size of a Tuff shed that Complainant had purchased. Complainant testified that the shed did not fit on the slab, that he had to return the shed, and that it cost him $500.00. Complainant testified that he had to pay another contractor to build a shed on site.

Complainant testified that he wanted smooth timber for the pergola. Mr. Vaughn testified that Complainant said he wanted the pergola to look like a neighbor’s pergola, which had rough lumber.

The block that Respondent installed on the east side of Complainant’s house was grayer than the block that another had installed on the west side of Complainant’s house. Investigator Dimond testified that block that has been installed at different times may not match because the blocks come from different dye lots during the manufacturing process.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website. On this date, Respondent’s license was current and in good standing. No discipline has ever been imposed on the license, although it has been administratively suspended for non-renewal or lack of bond.

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.”

The evidence establishes that Respondent’s proposals to Complainant did not contain all the elements required by A.R.S. § 32-1158(B). The proposals contain certain elements that Complainant later disputed, for example, the size of the slabs and that rough-sawn wood would be used to construct the pergola. A.R.S. § 32-1158(D) provides that “[t]he requirements of this section shall not constitute prerequisites to the formation or enforcement of a contract. Failure to comply with the requirements of this section shall not constitute a defense by either party to an action for compensation, damages, breach, enforcement or other cause of action based on the contract.” The proposals became the parties’ contracts when Complainant accepted them either by signing them or by paying the cost for Respondent to begin work. Complainant did not establish that Respondent’s failure to comply with A.R.S. § 32-1158(B) caused him any injury. Respondent established that it has brought its form contract into compliance with A.R.S. § 32-1158(B). Therefore, Complainant did not establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(12), namely, A.R.S. § 32-1158(B).

Complainant established that Respondent’s workmanship on the block fence, failure to place control joints on the slabs that exceeded 10’ x 10’, failure to reconnect the gutter downspout, and poor attachment of fascia on the pergola 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.

Complainant did not establish any other workmanship deficiencies. Moreover, because construction is not a perfect art, contractors 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 for Respondent to perform repairs or to comply with the Registrar’s May 12, 2016 Directive. Because a homeowner’s refusal to provide access provides legal justification for a contractor’s failure to comply with a directive issued by the Registrar, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Joel J. Errante’s complaint in Case No. 2016-549 against Respondent Masonry of Arizona Inc.’s License No. B.202091-R shall be closed based on denial of access.

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, December 5, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors