ALJDEC decisions subject to certification as final

2017A-3231-CHC-ROC · Registrar of Contractors · 2017-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Breven M. Liebow,

COMPLAINANT,

v.

C. Blackshear Construction, LLC ,

License No: 288366

RESPONDENT.

No. 2017A-3231-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 8, 2017

APPEARANCES: Complainant Breven M. Liebow appeared on behalf of himself. No one appeared on behalf of Respondent C. Blackshear Construction, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On September 7, 2017, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 24, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.

No representative for C. Blackshear Construction, LLC, (“C. Blackshear”) appeared at the scheduled time and the matter was convened in its absence at about 8:50 a.m.

Respondent C. Blackshear holds license number 288366 issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that C. Blackshear may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3),(A)(9), (A)(12) and (A)(22).

The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke C. Blackshear’s license.

On or about May 16, 2017, Complainant Breven M. Liebow (“Mr. Liebow”) and C. Blackshear entered into a residential remodeling contract. The contract did not advise Mr. Liebow of his right to file a Complaint with the Registrar against C. Blackshear for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B), and did not provide the Registrar’s telephone number or website address.

On or about May 22, 2017, C. Blackshear began work on Mr. Liebow’s home in connection with the home remodeling contract.

On or about June 20, 2017, C. Blackshear stopped work on Mr. Liebow’s home.

On or about June 23, 2017, Mr. Liebow filed a Complaint with the Registrar alleging poor workmanship on the part of C. Blackshear. Mr. Liebow also alleged that C. Blackshear did not build the home according to plans and that C. Blackshear’s manager misrepresented himself as a licensed contractor.

On July 11, 2017, Registrar Investigator Beau Cruz (“Investigator Cruz”) conducted a job site inspection.

On July 24, 2017, Investigator Cruz issued a Directive. The July 24, 2017 Directive provides, in relevant part, 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 may also be treated as an aggravating factor should the Registrar pursue discipline of your licensee. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 7, 2017.

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

When permits is pulled by the owner or owner’s agent and inspected, if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to Correct by Appropriate Means.

Complaint Item 3: did not build plans/design

Respondent installed the 3′′ x 12′′ ledger board in wrong location. Plans show that ledger board was to be sitting on top of block wall above garage location at the front of garage and respondent installed at on top of existing deck (sub-floor) of structure at 6 3⁄4′′. It should be noted that due to existing location of ledger board will not allow for ease of access from front of structure necessitating the installation of step-up into addition. It should be further noted that respondent failed to provide passing inspection by the county. Roof canopy for covered porch located on the east (E) side of the structure encroaches across the rear 4′ x 6′ window opening on the east (E) side of the addition due to improper installation location of the 3′′ x 12′′ ledger board. Respondent is to ensure that addition is built as per approved plans and ensure that all necessary inspections are conducted by the local jurisdiction.

Complaint Item 5: Contractor have not installed necessary safety strapping or required brackets

Failed to install Simpson CS16R (2 1/16”) coiled construction securing strap across studs as per plans. Respondent is to ensure that addition is built as per approved plans and ensure that all necessary inspections are conducted by the local jurisdiction.

Complaint Item 7: damaged driveway from Ed Blackshear cutting holes for the footers in the wrong location and has not repaired

Respondent initially is to ensure that footers are in compliance with corrections noted by inspector of local jurisdiction, Respondent is to ensure that footers have been installed as per approved plans and ensure that all necessary inspections are conducted by the local jurisdiction.

13. C. Blackshear did not comply with the Directive by August 7, 2017.

14. On November 2, 2017, Investigator Cruz conducted a prehearing

inspection. Investigator Cruz concluded that C. Blackshear did not repair any of the items listed in the Directive.

15. C. Blackshear filed a timely response to the Citation. In its response,

C. Blackshear wrote, “The Contractor is also opposed to the Homeowner’s assumption/allegation that he is ‘Aiding or abetting a licensed or unlicensed person’ on this project, in reference to employee Derwin Lackey, since this employee’s prior projects not only helped with forming this limited liability corporation, but he receives a 1099 form at the end of the year.”

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. At hearing, Mr. Liebow testified that Derwin Lackey performed most of the construction work. Mr. Liebow testified that Mr. Lackey was not a licensed contractor. Mr. Liebow testified that C. Blackshear performed poor work in the remodeling of his home and did that C. Blackshear did not perform the work in accordance with the plans.

18. At hearing, Investigator Cruz provided testimony regarding his initial inspection, the Directive and the prehearing inspection. Investigator Cruz testified that C. Blackshear did not install a ledger board in the location specified in the construction plans.

19. Investigator Cruz testified that C. Blackshear informed him that Derwin Lackey worked for C. Blackshear as a subcontractor. Investigator Cruz testified that he inquired with C. Blackshear regarding the license number of Derwin Hackey. Investigator Cruz testified that C. Blackshear did not provide him with proof that Derwin Lackey was licensed. Furthermore, Investigator Cruz testified that he was unable to find any evidence in the Registrar’s records that Derwin Lackey was a licensed contractor.

20. Administrative notice is taken of the Registrar’s public website. According

to the information regarding C. Blackshear’s license record available on the website on November 28, 2017, there are two open complaints against C. Blackshear’s license. Such prior license record also shows that one complaint resulted in discipline against C. Blackshear’s license.

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 violation 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 preponderance of the evidence shows that Respondent did not perform the construction work in accordance with the plans, which is a violation of Ariz. Rev. Stat. section 1154(A)(2).

The preponderance of the evidence shows that the issues found by Investigator Cruz constituted workmanship issues with the installation. Therefore, the Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent aided and abetted an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 1154(A)(12).

The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification in violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The undisputed evidence established that C. Blackshear’s contract did not include its business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).

The preponderance of the evidence showed that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend C. Blackshear Construction, LLC’s License No: 288366

for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, November 9, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors