ALJDEC decisions subject to certification as final

2017A-2877-CHC-ROC · Registrar of Contractors · 2018-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bryan Alan Astemborski,

COMPLAINANT,

v.

McMaken Construction LLC,

License No: 141916, 141915

RESPONDENT.

No. 2017A-2877-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 9, 2018 and February 15, 2018

APPEARANCES: Complainant Bryan Alan Astemborski appeared on his own behalf. Respondent McMaken Construction LLC was represented by Matthew D. Saxe.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

McMaken Construction LLC (Respondent) is the holder of License No. 141916 and 141915 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 5, 2016, Bryan Alan Astemborski (Complainant) signed a written estimate purported to be the contract from Respondent for a renovation of his home.

On or about June 2, 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 Russell Reed. After a jobsite inspection, Investigator Reed issued a written directive on June 27, 2017 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 licenses[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 17, 2017.

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

Front door installation is incomplete. Trim is not plumb.

Hose bib is not secured in wall on front of home.

Windows throughout home should have even reveals and function properly.

Guest bathroom floor tile design is not consistent.

Window in guest bathroom is not framed/ finished properly.

Cabinet doors should have even reveals when shut.

Any debris left behind from the contractor should be removed upon completion of project.

Repairs to wall and roof where previous electric panel were located need to be made.

Electrical line going into water heater storage room should be installed properly and meet local building code.

The roof of the water heater storage room has a gap between the home and the roof of storage room.

Garbage disposal should be replaced.

Sliding closet door and trim in guest bedroom should be removed as per contract.

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 of the corrective work, but did not complete every item. After the deadline in the directive expired, Investigator Reed was notified some corrective work had been performed and he scheduled a compliance inspection. At that inspection, Investigator Reed determined that six items from the written directive had not been completed by Respondent. Those items included the front door (item 1), window reveals (item 3), grout on the bathroom floor (item 4), window framed (item 5), cabinet doors (item 6), and debris (item 7).

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 Mike Crow testified that Investigator Reed was no longer employed by the Registrar and he, as Investigator Reed’s supervisor, had reviewed the case prior to the hearing and had conducted a prehearing inspection. Investigator Crow stated that during the prehearing inspection, he observed the same issues remaining to be completed that Investigator Reed noted at the compliance inspection. Investigator Crow observed that the only mention in the file regarding a denial of access was from Respondent on August 7, 2017, after the deadline for compliance with the written directive. Investigator Crow testified that a homeowner is not required to allow access after the deadline for compliance.

Complainant testified that he filed the complaint because the project was taking substantially longer than had been indicated at the time of the contract. Complainant stated that Respondent was still on the job working at the time he filed the complaint, but Complainant was concerned because he had been told the project would take three months and more than six months had elapsed. Complainant indicated that when Respondent found out about the complaint, Respondent walked off the job and left the jobsite unsecured. As a result, when Respondent began performing the corrective work as required by the written directive, Complainant would unlock the home in the morning for the workers to gain access and would return to lock up after the work was done for the day. Complainant indicated that Respondent wanted to begin work on the home at 5:30 a.m. on Sunday, July 16, 2017. Complainant was initially opposed to Respondent beginning work that early, especially on a Sunday, due to Phoenix municipal codes and consideration for his neighbors. Eventually, Complainant agreed to open the home at 5:30 a.m. to allow Respondent to finish the tile work that day. At 3:38 p.m. on Monday, July 17, 2017, Michael McMaken, Respondent’s member, texted Complainant stating that “all of the work has been completed with the exception of the grout in the bathroom it is to wet to gout tonight. I would like to grout in the morning it will only take an hour. Please let me know if you will unlock the house at 7am. Also the garbage disposal should be in tomorrow afternoon.” All errors in original. Complainant did not respond and did not grant Respondent access to the home after July 17, 2017. Complainant denied denying Respondent access to the property at any point during the directive period.

Mr. McMaken testified that he did not receive the written directive from the Registrar until Friday, June 30, 2017, or Saturday, July 1, 2017. Mr. McMaken did not make contact with Complainant until he sent a text on Tuesday, July 4, 2017, stating, “I will be at your house tomorrow morning July 5th at 7 am. I have a prior commitment on Thursday and Friday but will return on Monday July the 10th at 7 am.” Mr. McMaken asserted that during the summer, Respondent would prefer to begin the work day at 5:00 a.m. or 5:30 a.m., but Complainant did not unlock the property until 7:00 a.m. most days. Upon further questioning, Mr. McMaken admitted that he did not recall any discussion as to how the parties arrived at 7:00 a.m. as the start time, but from the text messages submitted, it appears Mr. McMaken consistently requested the home be opened at 7:00 a.m. except on Sunday, July 16, 2017, as detailed above. Mr. McMaken argued that he did everything reasonably possible to comply with the written directive.

Administrative notice is taken of Respondent’s prior license record on March 7, 2018. Such prior License record reflects that Respondent’s License No. 141915 was first issued on January 25, 1999, and is current, but was inactive from January 26, 2005, to January 26, 2010, and was suspended for lack of bond from February 9, 2002, to May 7, 2002, and from November 13, 2016, to December 16, 2016. Such prior License record also reflects that there were no other open complaints or resolved/settled/withdrawn complaint against Respondent’s license. Further, prior license record reflects that Respondent’s License No. 141916 was first issued on January 25, 1999, and is current, but was inactive from January 26, 2005, to January 26, 2010, and was suspended for lack of bond from November 13, 2016, to December 16, 2016. Such prior License record also reflects that there was one prior complaint against Respondent’s license that was resolved/settled/withdrawn.

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 uncontroverted 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 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 it was denied access to the property, nothing in the evidence established that Respondent was not allowed to access the property following the directive being issued and before the July 17, 2017 deadline. Therefore, Complainant established 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. 141916 and 141915 for a period of two 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, March 7, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors