ALJDEC decisions subject to certification as final

2017A-2973-CHC-ROC · Registrar of Contractors · 2017-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary E Templin,

COMPLAINANT,

v.

C Blackshear Construction LLC ,

License No: 288366

RESPONDENT.

No. 2017A-2973-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 25, 2017, at 8:30 a.m.

APPEARANCES: Gary E. Templin (“Mr. Templin” or “Complainant”); Pat Templin (“Mrs. Templin” for the Complainant); Ed Blackshear, Jr. (“Mr. Blackshear” or “Respondent” as representative for C. Blackshear Construction LLC); Carmen Blackshear (“Mrs. Blackshear” as representative for Respondent C. Blackshear Construction LLC); and Steve Nelson (“ROC Investigator” for the Registrar of Contractors (“Registrar”)).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Testimony and evidence were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are set forth below.

FINDINGS OF FACT

Gary E. Templin (“Complainant”) is the owner/occupant of a residence located at 4589 South Verbenia Court, Chandler, Arizona 85248.

Respondent holds Arizona Contractor’s License No. KB-2.288366-D.

Complainant contracted with Respondent to perform a new installation roof to a 525 SF home addition (labor only). Proposal III was dated February 22, 2017, and labeled Residential Addition (Roof). Proposal III was executed by the parties on March 21, 2017. The total cost for this project was $1,250.00. Worked commenced at the time of signing Proposal III and receipt of a one-half payment of $625.00 provided from Complainant to Respondent. The remaining balance was due upon Completion.

On or about June 8, 2017, a complaint was filed with the Registrar by the Complainant alleging Respondent had abandoned the project. Mr. Templin stated in his description that “(1) Contractor did not finish installation of new roof and refuses to complete roof project per contract; and (2) Contractor did not perform partial roof work per code, i.e., roof paper not cover edges, batten boards improper, improper flashing.” The Complainant noted on its Complaint date work stopped on June 5, 2017.

Registrar Investigator Steve Nelsen was assigned to investigate the complaint. Investigator Nelsen testified at the hearing that he met Complainant at the jobsite to conduct the inspection on June 27, 2017, and that Respondent was not present. During this jobsite inspection, he took photos with a state issued camera and concluded that the roof was essentially not complete. Additionally, Investigator Nelsen noted after a review of Respondent’s contract that the contract fails to meet minimum elements required of a Contractor, namely #9.

Based upon Investigator Nelsen’s Jobsite Inspection Notes, he listed:

Complaint Item 1: Contractor did not finish installation of new roof and refuses to complete roof project per contract.

Inspector’s Observations: This is substantiated. Roofer should complete work as per contract and applicable building standards and practices.

Governing Rule: Workmanship Rule A.R.S. § 32-1154(A)(3).

Complaint Item 2: Contractor did not perform partial roof work per code, i.e., roof paper not over edges, batten boards improper, improper flashing.

Inspector’s Observations: The roof was not completed, but I did notice that the underlayment was shrinking due to exposure to the sun, battens were beginning to crack and the single layer underlayment did not extend over the edge. All work must meet applicable building standards and codes. This complaint item is substantiated. See pics 6, 7, 11-15.

Governing Rule: Workmanship Rule A.R.S. § 32-1154(A)(3).

Investigator Nelsen substantiated both complained of items.

On June 27, 2017, a Directive was issued from the Registrar. The Directive stated in pertinent part as follows:

Contractor did not finish installation of new roof and refuses to complete roof project per contract. Complete roof as per contract using applicable building codes and standards.

Contractor did not perform roof work per code, i.e., roof paper not over edges, batten boards improper, improper flashing.

Contractor was provided a date of July 14, 2017, by 5:00 p.m. to comply with the Directive.

The Directive stated that the above work had to be complete by 5:00 p.m. on July 14, 2017. Investigator Nelsen testified that upon Respondent’s failure to meet the compliance date, he then sent the matter to legal.

On July 17, 2017, the Registrar issued Respondent a Citation. That Citation contained three charges.

Charge 1: a violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).”

Charge 2: a violation of A.R.S. § 32-1158 (A)(12), “failure in any material respect to comply with this chapter,” 1158(B): a violation of A.R.S. § 32-1158(B) “from and after December 31, 2017, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information [nos. 1 through 9].

Charge 3: a violation of A.R.S. § 32-1154(A)(22), namely “[f]failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

Respondent filed its Written Answer to Citation and Complaint on or about July 31, 2017. Respondent argues in its Response that they have been unable to complete the work because Respondent’s wife remains under the roof area after constantly being asked to please vacate the unsafe work area; and further argues that Complainant refuses to pay additional compensation resulting from Respondent’s misquote on the roof measurements of February 22, 2017. Respondent provided an addendum dated July 14, 2017.

On August 9, 2017, a Notice of Hearing was issued providing notification that a HEARING upon the charges made in the Citation and Complaint will be held by the Office of Administrative Hearings. A copy was mailed to the Respondent’s address of record.

At Hearing, Complainant motioned for wife, Pat Templin, co-owner of the property in issue be added to the Complaint. This Tribunal grants said Motion and it is so Ordered.

Respondent takes the position that he is only responsible for 525 sq. ft. of the roofing and that the additional footage requires additional funds. At hearing, Respondent was extremely volatile and continued to interrupt the proceedings. Respondent provided a copy of the Addendum dated July 14, 2017, for job address of 4589 S Verbenia Ct, Chandler, AZ 85248. The description stated, “new installation roof to 525 SF Home Additional (Labor Only); to include additional “2 Squares” for a subtotal of $1,960.00 and tax of $157.78 for a total of $2,117.78.

Complainant testified that Respondent was never denied access to complete the work required under the Directive and because the unfinished roof left the interior exposed to the elements and monsoon season fast approaching, he needed the roof to be complete.

Mrs. Templin credibly testified that she did not interfere with the workers accessing the roof and would not remain in an unsafe work area while Respondent completed the installation of the roof.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Undisputed credible testimony established Respondent performed substandard work on Complainant’s home regarding the roof installation to the 525 SF room addition. Thus, Complainant established Respondent’s work on the items specified in the Directive was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Respondent’s argument that a change order was issued and needed to be paid or agreed to in order to complete the work is found to lack credibility since Respondent was the contractor responsible for placing the foundation which is not a part of this Complaint but for this reason Respondent had knowledge of the building size when he submitted Proposal III for the roof installation to the room addition to the Complainant. Additionally, the Tribunal finds it disingenuous that an addendum would issue several weeks following the last day worked on the property, and was dated the same day the Registrar required the work to be complete as set forth in its Directive.

An A.R.S. § 32-1154(A)(22) violation is warranted given that Respondent did not timely complete the items listed to be remedied on the Directive. A contractor must be afforded access and an opportunity to perform corrective work to comply with a Directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(22). The record establishes that Complainant afforded Respondent access to his home to address the items contained in the Directive but failed to comply.

A violation of A.R.S. 32-1154(A)(12), 1158(B), items 4 and 9 is warranted based on a review of Respondent’s initial proposal dated February 22, 2017, and consideration that upon notice set forth in Inspector Nelsen’s Jobsite Inspection Notes dated June 27, 2017, that Respondent’s contract is deficient, Respondent’s failure to take corrective action to its purported Addendum dated July 14, 2017.

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. KB-2.288366-D for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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.

Done this day, November 19, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors