ALJDEC decisions subject to certification as final
2017A-4236-CHC-ROC · Registrar of Contractors · 2018-01-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lisa Koronkiewicz,
COMPLAINANT,
v.
Black Diamond Carpentry LLC,
License No. 238212
RESPONDENT.
No. 2017A-4236-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 12, 2018.
APPEARANCES: Lisa Koronkiewicz, Complainant, Thomas John Koronkiewicz,
Complainant, Cuck Joseph Manci, Respondent and Qualifying Party, Steve
Philpot, ROC Inspector
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
FINDINGS OF FACT
On November 21, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 12, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Black Diamond Carpentry LLC (“Black Diamond”) holds License No. 238212 issued by ROC. Cuck Joseph Manci is the qualifying party
Complainant hired Black Diamond On August 17, 2017, for work to be performed at Complainant’s residence located at 11100 Henry Dr., Flagstaff, AZ 86004. The parties’ agreements were memorialized in three written contracts. The first contract was for an addition to the home, the second contract was for a carport addition and the third contract was to construct a new patio roof.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
The Citation, alleges that Black Diamond may have violated Ariz. Rev. Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. §32-1154(A)(3) and A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action) §32-1154(A)(1), (A)(3), and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Black Diamond’s license.
On August 17, 2017, Mrs. Koronkiewicz filed a complaint with ROC alleging workmanship and other deficiencies on Black Diamond’s part.
In response to Mrs. Koronkiewicz complaint, ROC Investigator Steve Philpot conducted a job-site inspection on September 6, 2017.
On September 12, 2017, ROC issued to Black Diamond a Directive that required Black Diamond to correct over a dozen conditions:
Guest bath cabinet door warped greater than 1/8”
Addition door out of square, does not fit or close properly, poorly fitting;
Bi-fold door (closet) in bedroom out of alignment;
sitting room door to hallway does not close properly;
Gap between exterior wall sheathing, 4x8’ sheets improperly caulked;
Trim around exterior window has gap between window & trim / out of square;
Roof show improper ridgeline where main house meets addition and where addition meets carport;
South to north improper ridgeline;
Addition bathroom out of square resulting in bathtub set uneven, tile uneven;
Patio roof, skylight’s leaking water;
Carport outlets wobbly;
Hallway outlets wobbly;
Sitting room outlet wobbly.
The Directive required Black Diamond to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. September 17, 2017.
On September 29, 2017, the Complainant filed an addendum to her original complaint alleging two additional workmanship items asserting sub-standard caulking and unfinished painting and a sub-standard installation of a dryer vent exit.
On October 11, 2017, ROC issued a second directive to Black Diamond that required Black Diamond, in addition to the September 12, 2017 directive,
“...to remedy the following violations by the appropriate means:
Complaint Item 1: Caulk in addition bath separating from counter, cracked, water can get in. Investigator’s Observation: This complaint item is substantiated. At the time of the jobsite inspection, the caulking has been repaired; however, the touchup paint at the repaired area remains unfinished. Respondent shall correct by appropriate means.
Complaint Item 2: Verify dryer vent up to code.
Investigator’s Observation: This complaint item is substantiated. The dry vent installation shall conform to Section M1502 of the International Residential code, as adopted by the Coconino County building department.
The directive required that the specified items be remedied on or before 5:00 pm on October 27. 2017.
On November 2, 2017, a second compliance inspection was conducted by Mr. Philpot after notice. At this inspection, Mr. Philpot inspected for compliance of all of the matters alleged in both directives. The inspector found:
The following complaint items remain unresolved and/or fail to meet minimum industry standards.
Guest bath cabinet door warped greater than 1/8”
Addition door out of square, does not fit or close properly, poorly fitting
siting room door to hallway does not close properly.
Trim around exterior window has gap between window & trim / out of square
The face of the trim is not flush and is warped in excess of 1⁄4”
Roof show improper ridgeline where main house meets addition and where addition meets carport.
There are areas present where the roof sheathing bows up more that the acceptable tolerance. According to the National Association of home builders, residential construction performance guidelines, roof sheathing should not bow more than 1⁄2” in 2’. It did appear that a section exceeds that standard.
South to north improper ridgeline. There are areas present where the roof sheathing bows up more that the acceptable tolerance. According to the National Association of home builders, residential construction performance guidelines, roof sheathing should not bow more than 1⁄2” in 2’. It did appear that a section exceeds that standard.
Addition bathroom out of square resulting in bathtub set uneven, tile uneven. The tile is not parallel with the tub. There is a 1” variation of the width of the tile at the front of the tub vs. the back of the tub.
Patio roof, skylight’s leaking water. A water leak was not conducted in order to prevent the possibility of any corollary damage. Workmanship standards specify “penetrations should not be located within 18" of valley centerline.” The skylight ... is closer than 18”
(For addendum to complaint.)
Caulk in addition bath separating from counter, cracked, water can get in. At the time of the compliance jobsite inspection, the caulking has been repaired; however, the touchup paint at the repaired area remains unfinished.
Verify dryer vent up to code. The dry vent installation shall conform to Section M1502 of the International Residential code, as adopted by the Coconino County building department.
Black Diamond did not timely complete the work the ROC directives
ordered it to undertake.
On November 2, 2017, ROC issued its Citation.
At hearing on this matter, the Respondent presented no evidence and made no closing argument.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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3. Violation of any rule adopted by the registrar.
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22. 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Black Diamond violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner as is detailed in paragraph 13 of the Findings of Fact herein.
The preponderance of the evidence shows that Black Diamond violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to timely comply with the Directive.
Black Diamond’s license number 238212 should be suspended as discipline for its workmanship violations and a civil penalty of $250.00 should be imposed for its failure to comply with ROC’s Directive.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Black Diamond LLC’s license number 238212 is suspended until the Registrar of Contractors receives proof that Black Diamond Inc. has complied with the Directive. If before the effective date of the final Order, the Registrar of Contractors receives proof that Black Diamond Inc. has complied with the Directive, then its license shall be suspended for one day.
IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Black Diamond Inc. must pay to the Registrar of Contractors in certified funds a civil penalty of $250.00.
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 is forty days after the date of that certification.
_____________________________________________________________________
Done this day, January 25, 2018
Randy Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors