ALJDEC decisions subject to certification as final

2017A-2715-CHC-ROC · Registrar of Contractors · 2017-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kevin M Payne,

COMPLAINANT,

v.

RGB Restoration and Builders LLC,

License Nos. B.277891-R and

B-1.277890-C,

RESPONDENT.

No. 2017A-2715-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 19, 2017, at 8:30 a.m.

APPEARANCES: Kevin M. Payne (“Complainant”) appeared telephonically on his own behalf; RGB Restoration and Builders LLC (“Respondent”) appeared through Adam Anthony, its General Manager.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 26, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. B.277891-R for residential general contracting and B-1.277890-C for commercial general contracting to Respondent.

On or about May 24, 2017, Complainant filed a complaint with the Registrar against Respondent alleging 19 specific items of poor workmanship in Respondent’s performance of its contract to repair storm damage to the roofs and other items at Complainant’s house at 2094 S. Shannon Rd., Safford, Arizona 85546.

The Registrar assigned the complaint to its Investigator, Michael Springer, for investigation. Investigator Springer performed a jobsite inspection and on July 13, 2017, issued a directive to Respondent to repair five items on Complainant’s complaint on or before 5:00 p.m. on July 31, 2017.

On or about August 4, 2017, Investigator Springer performed a compliance jobsite inspection and took photographs. On that date, he issued Compliance Jobsite Inspection Notes to the parties that described the following four remaining workmanship deficiencies:

Compliance Findings: Item 1: Replace rake trim and install correctly throughout.

Investigator’s Observation: Northwest corner rake trim not straight (Pic 15). All rake trim ends are terminated differently, some have screws, some fold over, some are open (Pic 5, 11, 12). Two front rake trims have been spray painted where damaged during installation (Pic 8 & 9). Small pieces used to patch in instead of using whole pieces (Pic 10). Peak terminations are not mitered just overlapped (Pic 14).

Item 2: Paint backing boards under gutters, fascia and metal rake trim.

Investigator’s Observation: Some backing boards still unpainted behind gutters (Pic 20).

Item 3: Correct loose gutters.

Investigator’s Observation: Gutter in front of house still loose, blows in the wind (Pic 6).

Item 4: Replace screen that was removed.

Investigator’s Observation: Replacement screen does not match the two other screens directly next to missing screen. (Pic 3, 4).

After the compliance inspection, Investigator Springer referred the complaint to the Registrar’s Legal Department. On August 7, 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).

Respondent’s member George Alper filed a timely written answer to the Citation, stating Respondent’s license should not be suspended because it was working to resolve Complainant’s workmanship complaints.

An evidentiary hearing was held on October 19, 2017. Complainant testified telephonically on his own behalf and submitted as exhibits 71 photographs of the four remaining workmanship deficiencies and 3 videos of the gutter vibrating. Respondent’s General Manager Mr. Anthony testified on Respondent’s behalf. Investigator Springer also testified telephonically.

Hearing Evidence

Investigator Springer testified consistently with his Compliance Jobsite Inspection Notes. Investigator Springer testified that in his opinion, the four items described on the Compliance Jobsite Inspection Notes did not comply with the Registrar’s or industry workmanship standards.

Respondent did not dispute or contest any of the four deficiencies noted on Investigator Springer’s Compliance Jobsite Inspection Notes.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the website showed that Respondent’s licenses were current and in good standing. Respondent’s licenses had been placed on a finite suspension as a result of another complaint between November 26, 2014, and November 30, 2014.

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 workmanship did not comply with the Registrar’s or industry standards in the four specific deficiencies noted in Investigator Springer’s Compliance Jobsite Inspection Notes, 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.

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. Respondent corrected one item on the July 13, 2017 directive and performed partial repairs on the remaining four items. Respondent did not allege that Complainant refused to provide reasonable access for Respondent to fully comply with the July 13, 2017 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 Nos. B.277891-R and B-1.277890-C of Respondent RGB Restoration and Builders LLC shall be suspended for a period of seven (7) calendar 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 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 five days from the date of that certification.

Done this day, October 20, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors