ALJDEC decisions subject to certification as final

2017A-2466-CHC-ROC · Registrar of Contractors · 2017-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Craig Andrew and Brenda Lee Granquist,

COMPLAINANT,

v.

Palms Villa Construction LLC,

License No: 272345

RESPONDENT.

No. 2017A-2466-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 10, 2017

APPEARANCES: Complainants Craig Andrew and Brenda Lee Granquist appeared on their own behalf. Respondent Palms Villa Construction LLC was represented by Barry Olsen.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Palms Villa Construction LLC (Respondent) is the holder of License No. 272345 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 10, 2016, Craig Andrew and Brenda Lee Granquist (Complainants) signed a contract with Respondent the construction of a new home.

On or about May 10, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow issued a written directive to Respondent, via email and mail, 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 July 6, 2017.

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

“Paint peeling off interior walls in home and garage”

(Correct peeling paint around cover of exhaust fan in master bathroom)

“Bleed through of marker on the walls in the master bathroom above the counter area next to the sink and shower wall.”

“Patio door unit was installed incorrectly causing leaks which are resulting in damage to the interior of home flooring.” (R4-9-108 Workmanship standards/ Exterior doors require sealing of all six sides)

“Microwave vent outside of home installed incorrectly which is allowing dust into home/damage to microwave”

“Paint and concrete on exterior door sills”

“Exterior storage door under stairs needs outswing sweep”

“Scuppers missing rivets”

“Rust on deck rails around decorative spools”

“Front door need repainting with correct paint”

“Kitchen cabinet drawers and hardware need repair”

“Fresh air AC exchange need to be fastened correctly”

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 completed some of the required corrective work. After the deadline in the directive expired, Investigator Johndrow was notified some corrective work had been performed, but not all of the work had been completed. On or about July 19, 2017, Investigator Johndrow performed a compliance inspection. At that time, Investigator Johndrow determined that Respondent had corrected items 1, 8, 10, and 11. Investigator Johndrow also noted that the rivets had been placed in the scuppers, but had not been painted. The remaining issues had not been addressed.

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 Johndrow testified that Complainant would not allow Bill Evans on the property for the inspection, but would allow Edgar Lopez to attend. Investigator Johndrow noted that dust was coming in through the microwave vent and one could see daylight around the vent. Investigator Johndrow also testified that the patio door was leaking after a water test. Further, Investigator Johndrow stated that during the directive time period, Complainants had identified seven different days that they were unavailable for Respondent to perform work on the project. Investigator Johndrow acknowledged that after the compliance inspection, Respondent was not allowed on the property.

Ms. Granquist testified that after the directive was issued, she provided Respondent with a list of dates she was unavailable due to medical appointments. Ms. Granquist acknowledged that she had not granted Respondent access to the property since July 6, 2017.

Edgar Lopez, Respondent’s Qualifying Party, testified that Complainant’s were adamant about having a kerf jam on the patio door and he acknowledged that the kerf jam provided “absolutely no protection from the elements.” Mr. Lopez stated that Respondent did not receive the written directive until June 19, 2017. Mr. Lopez also indicated that scheduling the corrective work was complicated because Complainants required 24 hour notice prior to work being performed, but subcontractors were sometimes available with only 30 to 45 minutes notice. Mr. Lopez stated that after July 6, 2017, Complainants would not allow Respondent access to the property to completed the corrective work.

William Evans, Respondent’s Managing Member, testified that because there was a construction boom in the Yuma, Arizona area, it was difficult to find subcontractors to perform the corrective work.

Administrative notice is taken of Respondent’s prior License record on October 30, 2017. Such prior License record reflects that Respondent’s License No. 272345 was first issued on April 9, 2011, and is current. Such prior License record also reflects that there were no other prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

Complainants bear 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, Complainants established that Respondent did not complete the project in a workmanlike 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 complete the corrective work following the Directive being issued. While Respondent asserted that Complainants denied Respondent access to the property to complete the corrective work, that denial of access came only after the deadline for the corrective work had passed. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar without legal justification 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. 272345 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, October 30, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors