ALJDEC decisions subject to certification as final

2017A-4471-CHC-ROC · Registrar of Contractors · 2018-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Michael Mitchell

Complainant

v.

Adams Construction and Consulting LLC

Respondent

No. 2017A-4471-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2018, at 1:00 P.M.

APPEARANCES: William Michael Mitchell (“Mr. Mitchell” or “Complainant”); Jeff Adams (“Mr. Adams” representative for Adams Construction and Consulting LLC “Respondent”); Ken Welsh (“Mr. Welsh” attorney for Respondent); Cary Coleman (“Mr. Coleman” witness for Respondent); and Steven Lawton (“Investigator Lawton” for the Registrar of Contractors “Registrar” or “ROC”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

A hearing was convened pursuant to A.R.S. § 41-1092, et seq., in response to a Citation issued by the Registrar of Contractors (“Registrar”) against the license of Adams Construction and Consulting, LLC (“Respondent”) for alleged violations as set forth in the Citation. Based on the testimony and evidence in this matter, the following findings of facts, conclusions of law and recommendations are made.

FINDINGS OF FACT

According to the Registrar of Contractor’s (“Registrar”), on or about May 20, 2016, License No. CR61.305387-D for carpentry, remodeling and repair was issued to Respondent. Jeffrey Matthew Adams is the Qualifying Party/Member.

On or about August 30, 2017, Complainant filed a complaint with the Registrar against Respondent alleging poor work and non-performance. William Michael Mitchell (“Complainant”) listed sixteen (16) allegations against Respondent in his complaint. The Complainant stated a contract was entered on February 22, 2017, to demolition back patio and complete back patio structure build. The expected duration of the work from start to finish was to be up to 6 weeks. Work was to be performed at 8611 East Santa Catalina Drive, Scottsdale, Arizona 85255. The total cost was $47,000.00. Complainant indicated in his complaint that Respondent was paid $31,020.00.

The Registrar assigned the complaint to Investigator Ted Stodder for investigation. Investigator Stodder mailed a letter to the parties on September 5, 2017, notifying Respondent of the complaint and that a jobsite inspection was scheduled for September 27, 2017. A separate letter was also issued to Respondent notifying it of a possible violation of A.R.S. § 32-1158(A), specifically, 1158(B) elements of a contract.

On September 28, 2017, Investigator Stodder issued a Directive to Respondent directing it to remedy the following items by appropriate means: (1) provide engineers letter showing approval of the trusses, hangers, and beams; (2) provide engineer letter stating there is no structural damage to the pool; (3) complete project per approved plans, specifications, contract, and written change orders; (4) have all required building department inspection completed; and (5) complete work in a professional workmanlike manner. Respondent was provide a completion date of October 17, 2017.

On October 20, 2017, a letter was sent to the parties by Investigator Steven Lawton, Senior Investigator (“Investigator Lawton”), advising that a Compliance Inspection was scheduled on October 28, 2017.

During the time of the Compliance Inspection both parties were present but Respondent was not permitted to participate in the inspection process. Following the inspection, Investigator Lawton was permitted to take Respondent back to the build area. Investigator Lawton took photographs that were entered into the Registrar’s Compliance Inspection Notes. Notes from his observations were written by Investigator Lawton as follows: Photo 1: “patio structure and roof installed by Respondent leaks”; Photo 4: “unfinished patio structure. Not complete per directive”; Photo 10: “glulam beam not bolted down”; Photo 11: “roof sheathing not completed per directive”; and Photo 14: “Respondent doesn’t know if columns have been inspected”.

On October 31, 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)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

Respondent filed its answer to the Citation on or about November 15, 2071, denying all four (4) alleged violations, and requesting a hearing.

On November 21, 2017, a Notice of Hearing was mailed to the parties advising that a hearing is scheduled on January 12, 2018, at the Office of Administrative Hearings. The Notice of Hearing contained various headings including GENERAL INFORMATION: Information regarding procedures, practice pointers, online filing of motions and access to the OAH Portal is available through OAH’s website at www.azoah.com.

Hearing Evidence

At hearing, Complainant’s Exhibits C-1 through C-6 were admitted into evidence. Both parties offered testimony, as well as Investigator Lawton on behalf of the Registrar. Complainant in his opening restated his concerns as it pertains to his complaint, and Respondent argued that legal excuse exists to dismiss the complaint.

Investigator Lawton testified he was not the initial investigator assigned to this matter. Investigator Lawton testified consistently with his October 28, 2017 Compliance Inspection Notes and photographs obtained at that time.

Complainant testified as to how he came about hiring Respondent and that he located the names of five (5) contractors on Home Advisers, and meet and interviewed each of them. It was from those five (5) that he selected Respondent to perform the build to his residential patio. He testified that he began to become dissatisfied with the extreme delays in completing the work as agreed to in the contract.

Complainant explained that Respondent was given access to the property to complete the Directive but that no attempt was made by Respondent. During hearing, it was obvious that Complainant was argumentative and frustrated towards Respondent.

Entered into the Registrar’s record is the findings issued by the City of Scottsdale on October 10, 2017. Complainant also offered various exhibits to include a letter dated 10/23/2017 surrounding an inspection of the trusses by an outside vendor; a proposal and acceptance dated 11/02/2017 from Apollo Structural Engineers, LLC; supplement billing from Respondent dated 06/19/2017; emails exchanged between the parties dating 10/04/2017 and 10/13/2017; Walden Architects, Inc. Covered Patio Remodel plans dated 04/10/2017; and an email dated 08/21/2017 from Respondent to Complainant highlighting a completion date by the 31st of August.

Complainant testified that when the work was initially being performed, Respondent’s worker dropped a beam into the swimming pool causing damage, and during the time of issuance of the Directive, he was advised by Respondent that the Engineer would be arriving but was a no show.

Respondent asked Complainant if he has any pets to which he replied, yes, two (2) dogs: one (1) small and one (1) medium.

Respondent testified that he has prior roofing experience as early as 2003. He further stated that it became impossible to talk with Complainant and that he thought it best to of email for further communications.

In regards to the Directive, he argued that the dogs were a concern for him and his workers to enter the backyard to work on the patio. And that during the time of the issuance of the directive, he expressly asked for confirmation from Complainant but never heard back from Complainant. He pointed to his email dated 10/13/2017 in which he sought confirmation, and in response to his email, Complainant argumentatively replied back that Respondent is not being clear in his requirement of seeking some type of communication.

Respondent’s email response to the Registrar dated 10/17/2017 reflected its concerns surrounding the dogs, and its attempts to gain access to take remedial action. Respondent also attached to that email a letter form Truss Fab, L.L.C. sent to it on October 13, 2017.

There was discussion on whether the plans called for 10’ columns. Respondent argued that he obtained “greentag” approval on use of the 10’ column. Respondent also testified that he underbid the job and needed to submit change orders to cover additional costs.

In closing, Complainant argued that he paid at least two-thirds of the agreed upon price and the work is still incomplete as of the date of the Compliance Inspection. He initially planned to use the backyard as a venue for his daughter’s wedding but those plans were disrupted as a result of the workmanship issues.

Respondent argued that the project went off course because Complainant sought to control how the work was to be performed and this frustrated and made it impossible to get the job done.

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.”

The Citation issued alleged potential violations of A.R.S. § 32-1154(A)(2), (3) (specifically A.A.C. R4-9-108), (8), and (22).

A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. This Tribunal finds that the plans presented at hearing to be that which were agreed upon by the owner. Complainant provided no witnesses to prove up that Respondent departed or disregarded the plans as presented as Exhibit C-5. Therefore, Complainant failed to meet its burden of proof.

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. Here, Complainant proved by a preponderance of the evidence that poor workmanship existed. Investigator Lawton credibly testified as to his findings and noted in the photographs obtained at his Compliance Inspection the issues observed as incomplete under the Directive.

Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards as referenced during the Compliance Inspection, 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.

A.R.S. § 32-1154(A)(8) provides grounds for suspension or revocation of a contractor’s license for failure to complete a project for the price stated in the contract, or any modification thereof. In this instance, Complainant failed to meet its burden. While an addendum was provided, the items listed in that addendum did not appear to be unreasonable or unjustified in association with the costs required to complete the project.

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. Investigator Lawton’s testimony established that Respondent received the Directive shortly after it was issued. Respondent acknowledged that it did not comply with the directive stating homeowner was uncooperative. Respondent did not establish that it attempted to contact Complainant to schedule repairs during the time allowed by the directive as it failed to provide any emails or telephone logs as to its attempts outside of the one email that was provided by Complainant. 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 No. CR-61.305387-D of Respondent Adams Construction and Consulting LLC shall be suspended for a period of five (5) 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, February1, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors