ALJDEC decisions subject to certification as final
2017A-5129-CHC-ROC · Registrar of Contractors · 2018-02-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert Lee Robertson,
COMPLAINANT,
v.
L and L Development LLC,
License No:
273090
RESPONDENT.
No. 2017A-5129-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 17, 2018, 8:30 A.M.
APPEARANCES: Complainant Robert L. Robertson appeared on his own behalf; Lance Nikolaus II appeared on behalf of Respondent L and L Development LLC; Chris Allison appeared on behalf of the Registrar of Contractors
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. L and L Development LLC (Respondent), is the holder of License Number B.273090-R issued by the Registrar of Contractors (Registrar).
2. On or about October 10, 2017, Robert L. Robertson (Complainant), filed a Complaint against Respondent with the Registrar alleging workmanship issues in connection with construction work at a residence at 3406 Lynx Drive, Lakeside, Arizona. Complainant represents that eight Proposal/Invoices attached to his Complaint constitute all or part of the agreement for the work performed or yet to be performed by Respondent.
3. Upon completion of an inspection performed by the Registrar on October 30, 2017, the Registrar issued a Directive, dated October 31, 2017, to Respondent for the failure to meet minimum workmanship standards. (Arizona Administrative Code Rule 4-9-108).
4. Specifically, the Registrar cited the following alleged violations:
Complaint Item 1 – Concrete
The concrete in front of front porch stairs ponds in excess of 3/16 inch. Correct by appropriate means.
Complaint Item 2 – Deck and Patio Cover
The back deck and patio cover was constructed without proper permits. The deck and patio cover does not meet minimum building code. Correct by appropriate means.
Complaint Item 3 – Roof Drainage
The flashing between the house roof and the patio roof was installed in a way that prevents proper drainage. Correct by appropriate means.
Complaint Item 4 – Laminate Flooring
The laminate flooring is lifting it edges/seams in multiple locations. Correct by appropriate means.
Complaint Item 5 – Permits
Respondent needs to obtain all proper permits before corrections are made.
Complaint Item 6 – Asphalt
The asphalt pile was never removed per contract. Correct by appropriate means.
Complaint Item 7 – RV Carport
The RV carport was not properly installed on a flat base and bolted down. Correct by appropriate means.
Complaint Item 8 – Garage
The construction of the garage was not completed per contract. Correct by appropriate means.
Complaint Item 9 – Deck Stairs
Deck stairs were not painted. Correct by appropriate means.
Complaint Item 10 – Gutters
Gutters were removed and never reinstalled. Correct by appropriate means.
Complaint Item 11 – Deck Gates
The deck gates do sag and do not open properly. Correct by appropriate means.
5. When some or all of the foregoing items were not corrected, the Registrar then issued a Citation to Respondent dated November 22, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for January 17, 2018, at 8:30 A.M. Complainant Robert L. Robertson appeared and testified on his own behalf; Lance Nikolaus II, member of Respondent, appeared and testified on behalf of Respondent. Chris Allison, the Registrar Investigator (Investigator) appeared and testified on behalf of the Registrar.
7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection.
8. With regard to the items in the Directive, the testimony of the witnesses was as follows:
Complaint Item 1 – Concrete
The Investigator testified that he performed a hose test on the new concrete and after letting the water sit for 30 minutes, he observed one area of ponding at a depth in excess of 3/16th of an inch. Lance Nikolaus II on behalf of Respondent did not refute the ponding but questioned why no core sample had been taken.
Complaint Item 2 – Deck and Patio Cover
In addition to testifying that there was no building permit obtained for the project, the Investigator also testified to four building code violations that he indicated most likely would be addressed through the permitting process: 1) beams note mechanically attached to posts; 2) posts not supported on permanent footings; 3) finish trim not complete; and 4) floor beams not supported on permanent footing. Mr. Nikolaus testified it was not Respondent’s responsibility to obtain a building permit and disputed that the foregoing items were violations of the building code.
Complaint Item 3 – Roof Drainage
The Investigator testified that the flashing between the house roof and patio roof was installed with a negative slope which would prevent proper drainage. Mr. Nikolaus disputed that there was not proper drainage and testified that there was no water damage present. Complainant testified that another roofing contractor observed that there was no proper drainage.
Complaint Item 4 – Laminate Flooring
The Investigator testified that some of the laminate flooring installed by Respondent was lifting at the edges and seams. Mr. Nikolaus testified that this was a warranty issue, not a workmanship issue and that the problem arose due to the product.
Complaint Item 5 – Permits
The Investigator testified again that a required building permit was not obtained, a deficiency already stated in Complaint Item 2.
Complaint Item 6 – Asphalt
The Investigator testified an asphalt debris pile was never removed from the property of Complainant. Mr. Nikolaus testified there was no mention of debris removal in contract and that Complainant had in fact wanted to use some of the debris. Complainant testified that he only wanted to use a small part of the debris, not the large chunks of asphalt that should have been removed.
Complaint Item 7 – RV Carport
The Investigator testified that the RV carport was not properly installed on a flat base and bolted down. Mr. Nikolaus testified that moving the existing carport for Complainant was not part of the contract or agreement between the parties and was done as a favor to Complainant. He further testified that Respondent installed it in the same fashion as it was installed in its original location.
Complaint Item 8 – Garage
The Investigator testified the open car port on the side of the garage was not completed per contract. Mr. Nikolaus testified that the materials were delivered but that the relationship between the parties had deteriorated to the point that the car port could not be completed.
Complaint Item 9 – Deck Stairs
The Investigator testified that deck stairs were left unpainted. Mr. Nikolaus testified that a clear coat had been applied but that Complainant had wanted to leave it looking rustic. Complainant testified that no clear coat had been applied.
Complaint Item 10 – Gutters
The Investigator testified that gutters were removed and never reinstalled. Mr. Nikolaus testified that replacing the gutters was not part of the contract or agreement between the parties.
Complaint Item 11 – Deck Gates
The Investigator testified that deck gates installed were sagging and not opening properly. Mr. Nikolaus testified that this task was performed by another contractor that Complainant paid directly.
13. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On June 22, 2016, Respondent’s License No. B.273090-R was revoked. The administratively revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline.
CONCLUSIONS OF LAW
1. 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.
2. The administratively revoked status of Respondent’s license does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
3. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
4. 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).
5. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
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.
6. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”
7. Complainant has presented sufficient evidence to establish that Respondent disregarded the building codes of a political subdivision of the state in violation of A.R.S. § 32-1154(A)(2). The evidence presented at hearing demonstrated that Respondent performed the work on the project before a required permit was obtained.
8. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional manner in violation of A.R.S. § 32-1154(A)(3). Specifically, with respect to the Directive items:
Complaint Item 1 – Concrete
Complainant established that the concrete in front of the front porch stairs ponded at a depth in excess of 3/16th of an inch. There was no evidence presented to refute Complainant’s evidence.
Complaint Item 2 – Deck and Patio Cover
There was no dispute that the back deck and patio cover were constructed without proper permits. However, there was not sufficient evidence presented to establish that the deck and patio cover did not meet minimum building codes. As stated by the Investigator, these specific items would most likely be addressed through the permitting process.
Complaint Item 3 – Roof Drainage
Complainant has established that the flashing between the house roof and the patio roof was installed in a way that prevents proper drainage. Respondent’s contention that it was not deficient was not persuasive.
Complaint Item 4 – Laminate Flooring
Complainant has established that the laminate flooring is lifting at edges/seams in multiple locations. Even if such was caused by product failure as Respondent contends, this does relieve Respondent from the responsibility to ensure the installed flooring is without defects.
Complaint Item 5 – Permits
This Complaint item is in large part duplicative of Complaint Item 2.
Complaint Item 6 – Asphalt
Complainant has established that the asphalt debris pile was never removed and that Respondent was responsible for such removal. Although Respondent contends such removal was not part of the agreement of the parties, a reference in the proposal #4, dated September 14, 2015, to “concrete removal” could reasonably be inferred to also include removal of the debris from the project site.
Complaint Item 7 – RV Carport
Complainant has established that the RV carport that was moved was not properly installed on a flat base and bolted down. Respondent contends that this task was not part of the contract or agreement between the parties and that Respondent moved and installed it in the same manner as it was in its original location. However, even if such a task was done as a favor to Complainant as Respondent contends, once it was undertaken by Respondent, it was required to have been performed in a professional manner regardless of how it was originally installed.
Complaint Item 8 – Garage
There was no dispute that the open car port on the side of the garage was not completed by Respondent. Respondent admits that the materials were delivered. However, Respondent’s contention that it was not completed because of the breakdown in the relationship between the parties does relieve Respondent of its obligation to complete the task.
Complaint Item 9 – Deck Stairs
Complainant has established that the deck stairs were not painted. Respondent admits that clear coat was applied and does not deny that there was no further painting.
Complaint Item 10 – Gutters
Complainant has not established that the reinstallation of the gutters was the responsibility of Respondent. Complainant testified that Respondent removed the gutters but Respondent contends the gutters were in such a condition that they could not be reused. However, The Tribunal could not locate any reference to gutters in any of the proposals/invoices or anything to suggest that Respondent had included replacement gutters in its bid.
Complaint Item 11 – Deck Gates
Complainant has not established that the deficiencies with the deck gates were the responsibility of Respondent. Respondent established that they were installed by a separate contractor that Complainant paid directly. Complainant presented no evidence to refute this or to demonstrate that this gate contractor was a subcontractor of Respondent.
9. Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. Respondent was unable to proceed with any corrective action because its contractor’s license was in revoked status.
10. Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, L and L Development LLC’s License Number B.273090-R is revoked until the Registrar receives and accepts written verification that L and L Development LLC has caused to remedy Complaint Item Numbers 1, 2, 3, 4, 5, 6, 7, 8, and 9 listed in the Registrar’s Directive, dated October 31, 2017.
In the event of certification of this 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 the certification.
Done this day, February 1, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors