ALJDEC decisions subject to certification as final
2017A-5830-CHC-ROC · Registrar of Contractors · 2018-06-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Anthony J Moley,
COMPLAINANT,
v.
Mammoth Construction LLC,
License No: 297748
RESPONDENT.
No. 2017A-5830-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 18, 2018, 1:00 P.M.
APPEARANCES: Complainant Anthony Moley appeared on his own behalf; Robert Kozak, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Mammoth Construction, LLC (Respondent), is the holder of License Number 297748 issued by the Registrar of Contractors (Registrar).
2. On or about November 20, 2017, Anthony Moley (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with framing work performed by Respondent for Complainant’s residence.
3. After an inspection of the job site on December 29, 2017, the Registrar issued a Directive dated January 25, 2018, requiring Respondent to remedy various alleged violations by February 26, 2018, as follows:
The Respondent is to correct the following in an appropriate manner:
1. All walls that do not fall into the ROC standard for straightness
2. All blocking that does not properly fit
3. All framing that is not plumb
4. All beams that don’t properly terminate or are crowned inappropriately
5. Remove all “shiners”
6. Properly nail all components of framing for corbels, arches and niches
7. Properly install all backing as required
8. Ensure that the doors are installed in a manner that complies with manufacturer specifications and ROC standards for reveal and tightness.
9. Correct insufficient headers
10. Correct studs and blocking that are split or damaged
11. Correct framing that does not properly align on the top and bottom plates
12. Correct all fillers at window openings
13. Install the T&G at the soffit at the front door.
The Respondent is also to comply with inspection requirements by Yavapai County as well as make the necessary corrections listed by the county inspector.
4. The Registrar then conducted a compliance inspection on March 2, 2018, at which time it made the following findings:
Compliance Findings: There is framing that is poorly corrected (hacked, splintered). The OSB fillers at windows still extend past the framing.
The front door hinges are still not properly secured. It appears that the current installation of the doors and windows are not warrantable by Pella.
While some of the walls appear to be improved for plane and fit at top/bottom plates, there are still areas that in my opinion do not meet standards.
Status of compliance with Yavapai County is pending
5. As a result, the Registrar then issued a Citation to Respondent, dated March 5, 2018, 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 without valid justification).
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 May 8, 2018, at 1:00 P.M. At the hearing, Complainant Anthony Moley testified on his own behalf and presented the testimony of Candie Robertson; Brian Kellerman, Member and Qualifying Party of Respondent, testified on behalf of Respondent. Jim Dimond, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1-`13 and Respondent’s exhibit numbers 1 - 15.
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. Specifically, he testified that after the Directive was issued, Respondent informed him that it had completed the Directive items and Respondent stated it believed it was now in compliance. The Investigator stated, however, that upon further inspection, he observed that the framing was poorly corrected and that despite apparent attempts by Respondent to address the Directive items, the items had not been fully corrected.
8. Complainant testified that none of the Directive items were properly corrected except for Directive Item No. 13, which involved installing the T and G at the soffit at the front door. He testified and presented photographs as to the other Directive items that remained. (Complainant’s Exhibit 1). Complainant also testified as to the Yavapai County Development Services Correction Notice, dated December 13, 2017, which reflects a list of 26 items that were required to be corrected before proceeding with the project, 9 of which he stated relate to framing for which Respondent was responsible. (Respondent’s Exhibit 4).
9. Candie Robertson testified on behalf of Complainant that she took over communications with Respondent due to the animosity between the parties. She stated that once she became the direct contact for Respondent, there was no reason for Respondent to not return to complete the corrective work.
10. Brian Kellerman on behalf of Respondent testified that Complainant acted as the general contractor on the project to build the residence and that Respondent contracted only to do the framing work which began in August 2017. He stated that Complainant altered some of Respondent’s work by lowering ceilings and taking a wall out. With respect to the Yavapai County Development Services Correction Notice, he stated that item number 13 relating to providing a fire block resulted from Complainant’s lowering of the ceiling. (Respondent’s Exhibit 4). He admitted that there were some Directive items on the project that Respondent did not correct.
11. Mr. Kellerman further testified that Complainant alleged Respondent had stolen some of Complainant’s construction materials from the job site and that Complainant had filed a police report. (Respondent’s Exhibit 11). He testified as to the animosity between the parties, that Complainant would typically carry a gun at the project site, and that there were constant verbal threats from Complainant which made Respondent’s workers afraid to work at the site.
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 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.
3. To warrant such sanctions by the Registrar, a 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).
4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,
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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.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.” 6. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or specifications or any building codes. The Yavapai County Development Services Correction Notice contains numerous items regarding framing including the “need to go over all framing” for various deficiencies. (Respondent’s Exhibit 4). However, there was insufficient evidence presented to show that Respondent had remedied all of the framing items contained in the notice for which it was responsible (excluding Correction Item Number 13). Complainant did not refute the evidence that Complainant was responsible for Correction Item Number 13 relating to providing a fire block due which resulted from Complainant’s lowering of the ceiling. (Respondent’s Exhibit 4).
7. Complainant has also presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) due to the failure to perform all work in a professional and workmanlike manner. Evidence was presented that only Directive Item No. 12 was completed. With respect to the remaining Directive items, while the evidence reflected that Respondent may have attempted to correct each of these items, the evidence presented did not support a finding that any of these other Directive items was fully corrected.
8. As part of its defense, Respondent contended that Complainant had modified some of the framing work performed by Respondent. However, other than Item No. 13 of the Yavapai County Development Services Correction Notice, there was no evidence presented that Complainant’s modifications related directly to any of the Directive items or the other Yavapai County Development Services correction items or that Complainant’s work was the cause of any of these other items.
9. Complainant has also presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for failure to perform corrective action. Respondent has not demonstrated a valid justification for the failure to perform corrective action. Respondent argued that there was a valid justification for its failure to complete corrective work due to an allegation made by Complainant that Respondent had stolen some of Complainant’s materials from the job site which, according to Respondent, made it untenable for Respondent to proceed with the work. However, the theft allegation and police report arising therefrom occurred on December 15, 2017, well before the issuance of the Directive, dated January 25, 2018. The police report reflects that the allegation was of a civil rather than criminal nature and it appears the matter went no further with the Yavapai County Sheriff’s Office. (Respondent’s Exhibit 11). Thus, there does not appear to be any reason why this theft allegation would have prevented attempts at corrective work. Indeed the evidence reflects that there were such attempts made by Respondent even after the allegation was made and police report was issued.
10. Respondent also maintained that there was a valid justification for the failure to complete the corrective work because Complainant carried a gun and there were constant verbal threats from Complainant. However, Mr. Kellerman testified that Respondent undertook corrective work on three separate occasions in response to the Directive and that there was nothing of significance that occurred with respect to Complainant on the last occasion. Therefore, whatever threats there may have been that did not prevent corrective work on those three occasions should not have prevented any further attempts by Respondent to complete the corrective work.
11. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 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, Mammoth Construction, LLC’s, License Number 297748 is suspended for two days.
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, June 7, 2018.
/s/ Roger A. Geddes_____
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors