FINACT2018A-04361-ROC.pdf

2018A-04361-ROC · Registrar of Contractors · 2019-04-08

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Cara J Leivdal, Case No. 2018-04361 COMPLAINANT, Docket No. 2018A-04361-ROC v. Craven Construction LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 311721 & 315169, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the final

administrative decision in this case and becomes effective on May 14, 2019.

FINAL NOTE

On page 1, line 21 replace “February 02, 2017” with “February 21, 2017”. On page 2, line 2

replace “315169” with “311721”. On page 2, line 4 replace the first instance of “311721” with “315169”.

Dated April 4, 2019.

Registrar of Contractors

/s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail April 4, 2019 to: Respondent Craven Construction LLC 710 N Ironwood Dr Apache Junction, AZ 85120 Complainant Cara J Leivdal 6539 E Arbor Ave Mesa, AZ 85206 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Jenna Clark, Administrative Law Judge

Case No. 2018-04361 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 3.14.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cara J Leivdal, No. 2018A-04361-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION Craven Construction LLC, ROC License: ROC 311721, 315169 RESPONDENT.

HEARING: February 22, 2019 at 1:00 PM. APPEARANCES: Cara Leivdal (“Complainant”) appeared on her own behalf with Dennis Bierma as a witness. Randy Craven appeared on behalf of Craven Construction LLC (“Respondent”). ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar of Contractors (“ROC”). FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. According to the ROC’s public website, on or about February 02, 2017, the ROC issued License No. 311721, specialty dual CR-42 roofing contracting license, to Respondent.1 On or about July 31, 2017, the ROC issued License No. 315169, specialty residential R-62 minor home improvements contracting license, to Respondent.2 Respondent’s address of record on both licenses is 710 N. Ironwood Dr. Apache Junction, AZ 85120-3832. Randy Lee Craven (“Mr. Craven”) is the Qualifying Party/Member on both licenses.

1 See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXr5EAH. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXvTEAX. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 3.14.2019 ROC LEGAL

2. Administrative notice is taken that discipline has been issued against both licenses on one prior occasion.3 There are two open case against License No. 315169, one of which is presumed to be Complainant’s. There are no open cases against

License No. 311721. License No. 311721 has an active $6,750.00 surety bond issued

by RLI Insurance Company.4 License No. 315169 has an active $4,250.00 surety bond

issued by RLI Insurance Company.5

3. Complainant is the residential property owner of 6539 E Arbor Ave. Mesa,

AZ 85206.

4. On March 07, 2018, the parties entered into a contractual agreement

whereby Respondent agreed to perform roof extension over backyard patio for

Complainant, at the above-captioned residential address, for $9,000.00.6 The scope of

the project included removing certain sections of Complainant’s existing roof, and

installing an extension that covered her patio.7

5. Respondent began the project on April 20, 2018. Although the project was

supposed to be completed on April 22, 2018, work continued through May 25, 2018,

whereby it ceased.

6. On September 11, 2018, Complainant filed a complaint with the ROC alleging that Respondent had abandoned her project, and further alleged that the work Respondent had performed was subpar.8 Complainant attached a copy of Respondent’s estimate, and two check stubs for $4,500.00 each dated March 30, 2018, and May 24, 2018, respectively.9 7. The ROC received Complainant’s complaint on September 17, 2018. The ROC assigned Case 2018-04361 to Dennis Bierma (“Investigator Bierma”) for investigation.

Id. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXr5EAH. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXr5EAH. See Hearing File, pages 32-33. See Hearing File, page 34. See Hearing File, pages 32-33. 9 See Hearing File, pages 34-41. RECEIVED 3.14.2019 ROC LEGAL

8. On or about October 03, 2018, the ROC issued a JOBSITE INSPECTION NOTIFICATION letter to both parties advising receipt of Complainant’s complaint.10 The parties were advised that a jobsite inspection would take place on October 17, 2018, at

11:30 a.m.11

9. On October 17, 2018, Investigator Bierma conducted a review of the

contract executed between the parties and inspected the work that had been done on

the project to date. Investigator Bierma also took photographs of the property. When

he was finished Investigator Bierma drafted inspection notes.12

10. On October 23, 2018, Investigator Bierma issued a DIRECTIVE FROM THE

REGISTRAR to Respondent because he substantiated one of Complainant’s allegations,

complaint item #4, that Respondent’s work failed to meet minimum workmanship

standards.13 Respondent was put on notice that it had until November 19, 2018, to

notify the ROC of its compliance with the corrective order14 or face discipline pursuant

to ARIZ. ADMIN. CODE R4-9-108, and ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-

1154(E).15 Respondent was also specifically advised to “[E]nsure that any and all

required building permits are obtained from the Local Building Authorities prior to

making corrections listed in this Directive.”16 11. On December 11, 2018, Investigator Bierma issued a BUILDING PERMIT notification letter to Respondent to advise Respondent that he may in violation of ARIZ. REV. STAT. § 32-1154(A)(2).17 12. On December 12, 2018, the ROC issued a CITATION to Respondent under ARIZ. ADMIN. CODE R4-9-108 and ARIZ. REV. STAT. §§ 32-1154(A)(2), 32-1154(A)(3), and

10 See Hearing File, pages 75-77. Id. See Hearing File, pages 82-83. See Hearing File, pages 42-43. “Correct roof leak and any damage to dining room ceiling that a result of the roof leak.” [sic] Id. Id. 17 See Hearing File, pages 64-66. RECEIVED 3.14.2019 ROC LEGAL

32-1154(A)(22).18 Respondent was given until December 27, 2018, to respond with its ANSWER.19 13. Respondent filed a timely ANSWER.20

14. On December 26, 2018, the ROC referred this matter to the Office of

Administrative Hearings, an independent state agency, for an evidentiary hearing on

February 22, 2019, at 1:00 p.m. Per the NOTICE OF HEARING the issue to be determined

is whether the ROC has cause to discipline Respondent’s license based on the

following charges:

Charge 1: A violation of A.R.S. § 32-1154(A)(2) Departure from or disregard of plans or specifications or any building codes of this state or any political subdivision of this 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. Charge 2: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). Charge 3: A violation of A.R.S. § 32-1154(A)(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.”).21 HEARING EVIDENCE 15. Randy Craven appeared on behalf of Respondent. Complainant appeared on her own behalf with Dennis Bierma as a witness, and submitted seven exhibits. The NOTICE OF HEARING was also admitted into the evidentiary record. Complainant’s testimony 16. Complainant testified that Respondent was supposed to begin her project on April 15, 2018, but did not start it until April 26, 2018. The project was supposed to Hearing File, pages 12-18. Id. See Hearing File, pages 50-51. 21 See Hearing File, pages 17-23. RECEIVED 3.14.2019 ROC LEGAL

be completed no later than seven business days from that start date. Per Complainant, the project was not completed until May 25, 2018. 17. Complainant paid a total of $9,000.00 for the project, as required by

contract. On March 30, 2018, Complainant issued check number 1546 to Respondent

for $4,500.00 to Respondent, and on May 24, 2018, Complainant issued check number

1561 to Respondent for $4,500.00.

18. Complainant testified that she was unaware a permit was required for her

project prior to its commencement, so she did not obtain one from the city.

19. Per Complainant, on or about August 11, 2018, her dining room ceiling

began to leak directly underneath where Respondent cutaway at her roof to extend the

roof over her patio.

20. Respondent came to inspect Complainant’s property on August 15, 2018,

but due to rain the inspection was rescheduled for August 17, 2018.

21. On August 17, 2018, Respondent returned to Complainant’s property.

After inspection Respondent informed Complainant that the issue had been repaired,

but that due to their being two layers of shingles on her roof that it could still leak.

22. On August 20, 2018, Complainant asked Respondent to test the area of her roof at issue to see if it would leak, but Respondent declined and opined that it would be best to wait for actual rain. 23. On September 10, 2018, Respondent asked Complainant to sign an agreement that the roof repair had been completed so that Respondent could move forward with drywall and paint remediation efforts. Complainant declined. 24. On September 11, 2018, Complainant submitted a complaint to the ROC alleging abandonment and poor workmanship.22 25. As a result, a jobsite inspection was conducted by Investigator Bierma on October 17, 2018.

Complainant testified in early September 2018 it rained and caused her roof to leak again. Complainant alleged that she did not inform Respondent because his license was suspended at that time. RECEIVED 3.14.2019 ROC LEGAL

26. On October 23, 2018, the ROC issued a DIRECTIVE to Respondent. Respondent did not comply with the November 19, 2018, compliance deadline because Respondent refused to secure a building permit.

27. Complainant denies denying Respondent access, and argues instead that

she would have let Respondent make any necessary repairs had he obtained the

requisite permit beforehand. Respondent countered twice and argued that a permit was

not required to make repairs. Complainant disagreed.

28. Complainant testified that on or about November 16, 2018, Respondent

informed her that she would have to sign a new contract so that he could apply for a

building permit. Respondent told Complainant that he would not apply for a building

permit without her signing the new contract. No terms were discussed as Complainant

declined. Respondent agreed to perform remediation work after Complainant obtained

the building permit herself.

29. On or about November 27, 2018, Respondent informed Complainant that

he would come to the project site on November 30, 2018, and to take measurements of

the areas at issue and draw up plans for the permit. Respondent did not appear.

30. Per Complainant, she telephoned Respondent on December 03, 2018, December 04, 2018, and December 05, 2018, but was unable to reach him. Complaint testified that the last time she was in contact with Respondent was on November 27, 2018. 31. Complainant testified that she applied for a building permit on January 16, 2019. At that time a city employee contacted Respondent on her behalf and asked him to file for the permit instead of Complainant. Respondent declined. 32. Complainant testified that she was not able to obtain the permit because the city required additional information from Respondent, which Respondent refused to provide. 33. Complainant testified that no remediation efforts have been undertaken to date. Investigator Bierma’s testimony RECEIVED 3.14.2019 ROC LEGAL

34. Investigator Bierma testified that he was assigned by the ROC to investigate Case 2018-04361. 35. On October 17, 2018, Investigator Bierma inspected the project located at

6539 E Arbor Ave., Mesa, AZ 85206. After which, Investigator Bierma decided to

substantiate on of Complainant’s eleven complaint items.23 As a result Investigator

Bierma issued a DIRECTIVE to Respondent on October 23, 2018, whereby he informed

Respondent that he needed to remediate complaint item #4 by “appropriate means” no

later than November 19, 2018, but that he would have to ensure that all required

building permits were obtained from the city prior to making the correction(s) identified

in the DIRECTIVE.24

36. Investigator Bierma testified that he extended the compliance deadline for

the DIRECTIVE until November 23, 2018.

37. Per Investigator Bierma, it is the responsibility of a homeowner to obtain

any and all building permits prior to the commencement of a construction project.

However, if requisite permit(s) are not obtained beforehand by either party, the

responsibility to obtain said permit(s) transfers to the licensed contractor who began

work on the project. 38. On or about October 17, 2018, Investigator Bierma told Complainant that he had advised Respondent that he was required to have the project inspected by the city. Additionally, Investigator Bierma informed Complainant that it would remain Respondent’s responsibility to obtain a building permit from the city. 39. Investigator Bierma testified that on or about November 16, 2018, Respondent informed him that Complainant was refusing to provide Respondent access to the jobsite to perform repairs as outlined in the DIRECTIVE. Investigator Bierma testified that he informed Complainant that Respondent was permitted to address the leak in her roof and perform any remediation work necessary to prevent further damage, but ultimately it would be Respondent’s responsibility to comply with the DIRECTIVE. See Hearing File, pages 82-83. 24 See Hearing File, pages 42-43. RECEIVED 3.14.2019 ROC LEGAL

40. Investigator Bierma testified that a building permit was not required in order for Respondent to be permitted to make repairs to Complainant’s roof, but that Complainant was within her right to refuse to allow Respondent to perform any work on

her roof until Respondent obtained a permit.

41. Investigator Bierma testified that the requisite building permit was not

obtained by November 23, 2018.

42. On December 11, 2018, Investigator Bierma forwarded Case 2018-04361

to the ROC’s legal department with a recommendation for a Citation pursuant to ARIZ.

REV. STAT. §§ 32-1154(a)(2), 32-1154(a)(3), 32-1154(a)(22), and ARIZ. ADMIN. CODE

R4-9-108.25

43. On December 26, 2018, Investigator Bierma issued a letter to the City of

Mesa’s construction permits department which informed them that a building permit had

not yet been obtained for Complainant’s construction project.26

Respondent’s testimony

44. Respondent testified that he is the Qualifying Party/Member on License

Nos. 311721 and 315169.

45. Respondent agreed that he entered into a $9,000.00 contract with Complainant, which she paid in full, for a roof extension over her patio. Respondent also agreed that their agreement made no mention of obtaining a building permit. 46. Respondent testified that he agreed to extend Complainant’s roof over her patio, despite concerns he had regarding her dual-shingled roof tiles. Respondent testified that he moved forward with the project because he was confident that he could secure the “tie-in.” 47. Respondent denied that the work he performed for Complainant resulted in the leaks she experienced. Per Respondent, the leaks originate from around Complainant’s chimney.

See Hearing File, page 62. 26 See Hearing File, page 78. RECEIVED 3.14.2019 ROC LEGAL

48. Respondent argued that Complainant denied him access to the project site after the DIRECTIVE was issued on multiple occasions, which has prevented him from trying to fix the leak and repair the resulting damage to Complainant’s ceiling.

49. Respondent opined that a permit was not required in order for him to be

permitted to perform repair work for Complainant. Respondent also opined that he was

not required to obtain a permit because the project, both the roof extension and the

patio, were under two hundred square feet.

50. Respondent agreed that he did discuss obtaining a permit for

Complainant’s project with her, but ceased after Complainant refused to sign a new

contract with Respondent for the work.

CONCLUSIONS OF LAW

1. The ROC has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§

32-1101 et seq. and 32-1154(A).

2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.27 3. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.28 Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.29 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”30 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

See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. ADMIN. CODE R2-19-119(B)(2). 30 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 3.14.2019 ROC LEGAL

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.”31

5. ARIZ. ADMIN. CODE R4-9-108 holds, in pertinent part, that a contractor

shall perform all work in a professional and workmanlike manner and that a contractor

shall perform all work in accordance with any applicable building codes and

professional industry standards.

6. ARIZ. REV. STAT. § 32-1154(A)(2) holds that “Departure from or disregard

of plans or specifications or any building codes of this state or any political subdivision

of this 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.” 7. ARIZ. REV. STAT. § 32-1154(A)(3) holds that a holder of a license may not violate a rule adopted by the ROC. 8. ARIZ. REV. STAT. § 32-1154(A)(12) holds that a license holder may not fail in any material respect to comply with this chapter. 9. ARIZ. REV. STAT. § 32-1154(A)(22) holds, in pertinent part, that a holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

31 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 3.14.2019 ROC LEGAL

10. ARIZ. REV. STAT. § 32-1154(E) holds, in pertinent part, that the ROC may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the

automatic revocation of the license thirty days after the effective date of the order

providing for the civil penalty. It also holds that no future license may be issued to an

entity consisting of a person who is associated with the contractor, unless payment of

any outstanding civil penalty is tendered.

11. The material facts in this matter are not in dispute between the parties.

12. The parties executed an agreement for a residential roof project on March

07, 2018, whereby Complainant paid the contract price of $9,000.00 in exchange for

Respondent’s services. Additionally, the record reflects that Complainant failed to

obtain a construction permit prior to the commencement of the project, and Respondent

began work on the project without checking to see if a construction permit had been

obtained. After seasonal rain, Complainant’s roof leaked. The ROC determined that the

leak was caused by Respondent’s poor workmanship. Respondent failed to comply with

the resulting DIRECTIVE, though he was given additional time to do so, and never

obtained the construction permit for the job as required by the ROC. 13. Therefore, the only outstanding issue to be determined is whether Respondent had a valid affirmative defense for failing to comply with the ROC’s DIRECTIVE. 14. The Tribunal holds that Respondent does not. 15. Respondent’s allegation that the leak in Complainant’s roof was caused by her chimney is meritless, as he provided no evidence to substantiate that claim. 16. Further, Respondent’s misunderstanding or misinterpretation of the ROC’s DIRECTIVE is not an excuse or justification allowed by statute. It is accurate that Complainant was originally responsible for obtaining the construction permit required for her project. However, the moment Respondent began work on the project he shifted that responsibility to himself. Although Complainant could have permitted Respondent to repair the leak in her roof without a construction permit, she was not legally obligated to do so. The DIRECTIVE is clear in that it was Respondent’s responsibility to obtain the RECEIVED 3.14.2019 ROC LEGAL

permit at issue. Even if Complaint would have granted him access for the roof repair, Respondent still would have had to obtain the permit to complete the drywall and paint remediation work.

17. It is undisputed that Respondent never obtained the underlying

construction permit. Therefore, Respondent’s denial of access defense is moot.

18. Here, because Complainant has shown by a preponderance of the

evidence that the parties’ had a contract agreement, that Complainant tendered funds

to Respondent per the terms of said agreement, Respondent failed to timely complete

the underlying job as required by their agreement, and that Respondent failed to

comply with the ROC’s resulting Directive, Complainant has established by a

preponderance of the evidence that the ROC has cause to suspend or revoke

Respondent’s contractor’s license under ARIZ. REV. STAT. §§ 32-1154(A)(2), 32-

1154(A)(3), 32-1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108.

RECOMMENDED ORDER Based on the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED that five days after the effective date of the FINAL ORDER in this matter, Respondent Craven Construction LLC, License Nos. 311721 and 315169, be suspended for one day based on its violations of ARIZ. ADMIN. CODE R4-9- 108 and ARIZ. REV. STAT. §§ 32-1154(A)(2), 32-1154(A)(3), and 32-1154(A)(22). IT IS FURTHER RECOMMENDED that Respondent shall pay the sum of $100.00 as a civil penalty pursuant to ARIZ. REV. STAT. § 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 FINAL ORDER, the ROC shall revoke Respondent’s license, effective on such deadline date. 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, March 14, 2019. RECEIVED 3.14.2019 ROC LEGAL

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors