ALJDEC decisions subject to certification as final

2017A-1864-CHC-ROC · Registrar of Contractors · 2018-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Rice,

COMPLAINANT,

v.

Crowther Plumbing Inc,

License No: 232445

RESPONDENT.

No. 2017A-1864-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2017, at 1:30 p.m.

APPEARANCES: Robert Rice (“Mr. Rice” or “Complainant”); Bethany Rice (“Mrs. Rice”, witness for Complainant); Keith Crowther (“Respondent” representative for Crowther Plumbing, Inc.); and Steven Philpott (“Investigator Philpott” investigator for the Registrar of Contractors “ROC” or “Registrar”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

A hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar. Upon hearing of relevant testimony and evidence, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

According to the Registrar’s public website, Crowther Plumbing, Inc. (“Respondent”) was issued License No. B-232445-R for B General Residential Contractor on or about April 23, 2007. Its’ Qualifying Party and officer is Aaron Keith Crowther.

On or about April 7, 2017, Robert Rice (“Complainant”) filed a complaint with the Registrar against Respondent alleging poor work at its residence of 3209 S. Sanctuary Lane, Flagstaff, Arizona 86005. No contract or proof of payment was included in its complaint, or provided after a request by the Registrar on April 10, 2017.

On May 2, 2017, upon receipt of a copy of Complainant’s complaint from the Registrar, Respondent filed a request to dismiss the complaint stating that he had little contact with Complainant and after a month of Complainant’s occupancy of its residence, he was made aware there were some issues with the radiant heat system and water heater. In November 2016, he contacted Hatch Plumbing to address the issues and was advised that Mr. Rice was satisfied and his concerns resolved. He heard nothing more and was unaware the Complainant had any other concerns until receiving a copy of Complainant’s Complaint from the Registrar. Respondent further stated that upon receipt of the Complaint, it made several attempts to contact Complainant and that all efforts were ignored.

The Registrar assigned to investigate the complaint was Investigator Steve Philpott. Investigator Philpott conducted a jobsite inspection on May 18, 2017. Investigator Philpott noted the project had three parties involved, the Complainant, the Respondent and the Developer, and that the ROC does not have jurisdiction over the developer, KF Investments LLC, whom Complainant purchased the home. He also noted that Respondent does not have a direct contract with the Complainant, and at the time of the Jobsite Inspection, the requested information has not been received. Investigator Philpott also noted in his notes that from the date of the Complaint, Respondent has not been given the opportunity to inspect the work, until the Jobsite Inspection.

Investigator Philpott took 60 photos during this jobsite inspection. Investigator Philpot made the following observations and notes as listed on his Jobsite Inspection Notes regarding the complained of workmanship issues during this inspection. Below is a brief recap of what he substantiated; as well as notes from a few of the items, not all, that were at issue for Complainant but were not substantiated.

Complaint Item 1: concrete pad outside garage door incorrect. (Photo 2).

Investigator’s Observation: the placement of the concrete does not appear to be a code violation, however, spattered concrete is present on the sounding areas.

Complaint Item 2: Paint slopped on driveway. (Photos 3 & 4)

Complaint Item 3: Paint peeling on garage doors. (Photos 5 & 7)

Complaint Item 4: Weather stripping on garage doors leaking. (Photo 6).

Complaint Item 6: No flashing on ledger stone on decorative stone. (Photos 9, 10 & 11).

Complaint Item 7: French door paint flaking off in places (Photos 14 & 15).

Complaint Item 8: Front door incorrectly installed (Photos 12 & 13).

Investigator’s Observation: Door rubs on the jamb. Other Notes: Doors should clear 1/8” at top and sides.

Complaint Item 9: Both French doors installed to low and leaking air. (Photo 16 & 26).

Investigator’s Observation: The Complainant is partially substantiated. . . . . Drafts around the doors are unacceptable and Respondent shall correct the condition by appropriate means.

Complaint Item 10: French door window leaked water during storm. (Photo 18).

Investigator’s Observation: Evidence was present of the alleged leak. Other Notes: contractor should adjust or correct open cracks, poorly fitted doors or windows or poorly fitted weather stripping. If necessary, the contractor should adjust or replace the weather strippping or threshold one time during the first year of occupancy.

Complaint Item 11: Window frame above kitchen sink cracked / crooked (Photo 19 & 20).

Complaint Item 13: Granite in kitchen incorrectly installed. (Photos 22, 23 & 24).

Investigator’s Observation: Gaps should not exceed 1/8” between countertop and adjacent wall. Additionally, the granite top is not flush with the edge of the cabinet leaving an excessive gap next to the stove top.

Complaint Item 14: Sheetrock cracking on many windows. (Photos 25).

Investigator’s Observation: Contractor is required to repair nail pops, seam lines and other hairline cracks one time within first year of occupancy. Normal conditions such as hairline cracks where drywall meets a dissimilar material should be considered acceptable and can be readily corrected by homeowner.

Complaint Item 15: There is not grout/caulking between floor tile and doors. (Photo 17).

Complaint Item 18: Arched soffit doesn’t match blueprints. (Photo 30 & 31).

Investigator’s Observation: “The Respondent does not have direct contact with the complainant. There is not sufficient evidence to find that the Respondent failed to meet minimum construction standards. This complaint item is a dispute between the Complainant and the Developer and thus is outside the Registrar’s jurisdiction.”

Complaint Item 19: Fireplace not installed correctly & hillow switch not working. (Photo 32).

Investigator’s Observation: . . . The finished reveal around the permieter of the fireplace is inconsistent and does not meet minimum workmanship standards. Respondent shall correct by appropriate means.

Complaint Item 22: Closet door guides not installed in bed #3. (Photo 35).

Complaint Item 23: Tile near door casing cut too short bed #3. (Photo 37).

Complaint Item 28: No caulking/grout between tub & tile master bath. (Photo 45).

Complaint Item 29: No caulking/grout between tile & shower. (Photo 46, 47 & 48).

Complaint Item 30: Cracked caulking on windows. (Photo 49).

Complaint Item 33: Mortar/grout on tiles throughout house. (Photo 51).

.

Complaint Item 34: Caulking on many windows cracking.

Complaint Item 36: In floor heating / water heating not working correctly. (Photos 52 through 57).

Investigator’s Observation: The home has a Navien, NCB series combination boiler, which provides Domestic hot water and hot water for an in floor heat system. According to the manufacture, the system installed has “Domestic hot water priority” if the system is calling for domestic water, the heating side of the system will not work. I called and talked to a Factory tech, who stated the domestic water recirculation pump would need to be on a timer, as both functions will not operate at the same time. At the time of the Jobsite Inspection, a deficiency was not demonstrated or observed. The amount of time it currently takes for hot water to get to the kitchen sink, with the circulation pump turned off, meets minimum industry standards. No Action Required by the Respondent.

The Investigator added additional commentary, “Contractor should correct the heating to provide the specified temperature. The contractor should be responsible for balancing dampers, registers, and other minor adjustments one time for one season. Deficiencies caused by malfunction of system equipment or appliances are subject to the terms of the manufacturer’s warranty unless workmanship by contractor is involved.”

Complaint Item 37: Trim around doors rubbing by latch.

Investigator’s Observation: Repeat of Complaint Item #8.

Complaint Item 39: Cracked tiles. (Photos 58, 59 & 60).

Investigator’s Observation: Repeat of Complaint Item #8.

On June 6, 2017, Investigator Philpott issued a Directive setting forth Complaint Item Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, 15, 19, 22, 23, 38, 29, 30, 33, and 34, as violations that Respondent was directed to remedy no later than June 23, 2017.

Because Respondent failed to remedy any of the items listed on the Directive, Investigator Philpott referred the matter to the Registrar’s Legal Department. On June 27, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

On July 12, 2017, Respondent’s qualifying party Mr. Crowther filed a written answer to the Citation disputing the complaint and citation and will appear, if needed.

An evidentiary hearing was held on November 17, 2017, through videoconferencing at the Office of Administrative Hearing.

HEARING EVIDENCE

Respondent stated in its opening that he is prepared to address the issues and concerns of Complainant and that there has been tension in communications with Complainant causing him to have to retain a third-party consultant, Will McCleave, in its efforts to see that Complainant’s concerns are brought to a resolution.

Investigator Philpott credibly testified consistent with its May 18, 2017, Jobsite Inspection. Investigator Philpott stated for the record that has been an investigator for the Registrar for about 3 1⁄2 years. Investigator Philpott provided a narrative as to his involvement in this matter.

He received the matter on or about April 7, 2017. On April 13, 2017, written notice was sent to the Respondent. Investigator Philpott testified that the issue raised by Respondent that it was not able to inspect the allegations set forth in the Complaint and he confirmed Respondent was not able to at least inspect the allegations until the jobsite inspection.

Investigator Philpott testified that for this reason he wasn’t sure how A.R.S. § 32-1155(C)(1) applies or how to pursue this matter and consulted with an ROC Senior Investigator. It was determined to conduct the jobsite inspection and that this Complaint would not show on the Registrar Public Website as a Complaint against the Respondent but that if any workmanship issues were substantiated, and if completely remedied within the time allotted, then the Registrar would dismiss the case.

As Investigator Philpott testified, he conducted a Jobsite Inspection and did substantiated a number of the items.

Regarding Charge 2 of the Citation, failure to take appropriate corrective action and issues asserted by Respondent in respect to accessing the property, Investigator Philpott was questioned on whether an extension to complete the Directive was issued. Investigator Philpott consulted with his notes, and replied on June 26, 2017, he spoke with Complainant and was advised Respondent has not made an attempt to comply with the Directive and no written proof of compliance was received. At that time, the matter was referred to Legal.

On May 2, 2017, Respondent emailed a dismissal request and submitted text messages of its attempts to contact the Complainant. These communications were prior to the Jobsite Inspection.

Investigator Philpott was asked to further explain his comment made on the Jobsite Inspection where he noted the non-existence of a contractual relationship between the parties to which he replied, there were three parties, the Developer, Complainant and Respondent. Respondent was the builder for the Developer, and Developer sold the residence to the Complainant.

Investigator Philpott testified that a Pre-Hearing Inspection was conducted on November 15, 2017. At that inspection, his observed the following items listed on the Directive issued on June 6, 2017, as resolved: Complaint Item 2 fixed; Complaint Item 3 looked like corrected but possible new chips so unknown; Complaint Item 4: fixed and little touch up needed; Complaint Items 7 and 8 both fixed; Complaint Item 9 fixed; Complaint Item 10 fixed; Complaint Item 11 respondent replaced that window but there was a little drywall work that needed to be done; Complaint Item 22 fixed; and Complaint Item 37 fixed. Respondent was present at the Prehearing Inspection.

Complainant argued that he disagrees with a few of Investigator Philpott findings such as Complaint Item 1, and asserts that the concrete pad was replaced once by Respondent but is still in need of replacement.

Complainant questioned Investigator Philpott regarding Complaint Item 36, as it was not listed on the Directive, and Complaint Item 38 to which he referenced his observations as documented.

Respondent continued to argue that he was denied access to remedy the complained of issues because Complainant made it extremely challenging based on its work and holiday schedules. He also testified that Complainant was controlling when making attempts to remedy by telling the Respondent how the work should be performed. Complainant was rather aggressive in his response that he was unable to always make the property available due to work demands.

Respondent testified that he hired a consultant, Will McCleave, to assist in working with Mr. Rice to address his concerns and work towards a resolution. At hearing, the parties agreed that Mr. Rice would continue to work with Will McCleave and work to resolving the remaining items set forth on the Directive.

The parties agreed that they would continue to work together by way of the consultant and would notify the Office of Administrative hearing on or before January 30, 2018, whether the issues have been resolved. If resolved, then they would move to dismiss. If not resolved, then the Administrative Law Judge would conclude the matter and make its recommendation based on testimony and evidence obtained at the November 17, 2017 hearing. A Minute Entry Status Hearing Only was issued immediately following the hearing to the parties.

On January 30, 2018, at 5:49 PM, Complainant sent an email to the Office of Administrative Hearings stating, “my contractor had until January 30th 2018 to complete all repairs on my home none of the items on the list have been completed.” Therefore, the Administrative Law Judge concluded the matter on January 31, 2018. No new evidence was considered outside of that which was provided at the November 17, 2017 hearing.

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.”

Under A.R.S. 32-1154(A)(3), namely A.A.C. R4-9-108, Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the specific deficiencies listed in the Directive, thereby providing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Under A.R.S. 32-1154(A)(22) while construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. Complainant established that Respondent was provided a reasonable opportunity to remedy the items given his willingness to allow time from November 17, 2017, to January 30, 2018, for Respondent to address the remaining items that Investigator Philpott testified as remaining on the Directive.

Investigator Philpott testified that during his Prehearing Inspection, he observed several of the complained of items fixed and remedied. Based on the credible testimony of Investigator Philpott, this Tribunal finds the remaining outstanding issues from its June 6, 2016 Directive as: Complaint Item 1, Complaint Item 6, Complaint Item 13, Complaint Item 14, Complaint Item 15, Complaint Item 19, Complaint Item 23, Complainant Item 28, Complainant Item 29, Complainant Item 30, Complainant Item 33 and Complainant Item 34.

Respondent failed to establish that it attempted to contact Complainant to schedule repairs during the time allowed and that access was denied given that at hearing the Complainant allowed more than adequate time for the Respondent to address the remaining issues listed on the Directive. Therefore, Complainant established cause to discipline 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, License No. B-232445-R shall be suspended for a period of two (2) calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 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 forty days from the date of that certification.

Done this day, February 16, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors