ALJDEC decisions subject to certification as final

2018A-05679-ROC · Registrar of Contractors · 2019-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2019 APPEARANCES: Lea M. DeSanti, Complainant; Christopher J. Shearer, Complainant witness; Brian Burgmeier, Respondent; Paul Smith, ROC Investigator

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq. _____________________________________________________________________ FINDINGS OF FACT Respondent, SkyGreen Construction LLC, [hereinafter, “SkyGreen”] is the holder of License Number ROC 314249 issued by the Arizona Registrar of Contractors (Registrar).[1] Brian Burgmeier is SkyGreen’s Qualified Party.

On or about, January 5, 2018 Complainant Lea Michelle DeSanti [hereinafter, “DeSanti”] entered into a contract with Respondent to construct a garage addition on DeSanti’s Residence and to remodel the house with new window, doors, flooring, drywall installation roofing, plumbing installation and some electrical.[2] On or about November 21, 2018, the Registrar received a Complaint against SkyGreen from DeSanti alleging SkyGreen performed poor work resulting in direct and consequential damages to her home and that SkyGreen had abandoned the project. The Registrar assigned the complaint to Investigator Paul Smith [hereinafter, “Smith”]. On or about December 21, 2018, a Jobsite Inspection [the “JSI”] was conducted by Investigator Smith at the DeSanti residence.[3] Of the 18 separate items identified by Mr. Smith from the Complaint, he was unable to substantiate that any of the work performed demonstrated workmanship issues at his JSI for the sole reason that that the project was still a work in progress, i. e., the project was not in a state of completion.[4] On December 26, 2018, Investigator Smith issued a Written Directive to SkyGreen that provided as follows:[5] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on February 1, 2019. (emphasis in the original). You are hereby directed d to remedy the following violations by the appropriate means:

During the Job Site Inspection there were several complaint items brought forth by the home owner that were not addressed on this Directive due to the fact the items were not complete due to the fact this is a work in progress. This Directive is based on the whole project and the fact that this project started over l0 months ago and the agreement you made, at the JSl, with the home owner to have the project completed by January 31, 2019. Project shall be completed per agreed contract signed between Complainant and Respondent January 2018.

International Residential code R105.1 slates ”any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical, or plumbing system, the installation of which is regulated by this code or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”

Investigator cannot verily if issues exist. The permit required and the work should be inspected by the proper municipality's building official and signed off accordingly.

Following the issuance of the Written Directive, SkyGreen did not correct the items listed in the Directive on or before the Directive’s deadline for compliance. A Compliance Inspection was conducted by Investigator Smith who reported[6] that On 2/11/2019 at approximately I: 00 pm, I arrived at 47 East Velcro Street for a Compliance Job Site Inspection. On site when I arrived was [sic] Brian Burgmeirer (R) and Lea DeSanti (C) along with several employees of the R working on various plans of the home, mainly on the front porch area.

During the initial JSI conducted the end of December 2018 the R made a statement that the construction would be complete on January 31, 2019. On this date the construction was not complete and was in the finishing stages. The C stated that the construction has made substantial progress. The R requested that the C give him more lime to complete the job and stated one week. There was no agreement and no date was determined.

Investigator D. Rhoads showed up on at the CJSI towards the end of the inspection. Based on the progress of the work and the C stating that she was satisfied to this point with most of the work, she wanted them to continue and complete the job.

I explained to the C and R that the next stage was for the case to be sent to the ROC trial department. I also explained to them that when the construction is complete there is nothing prohibiting the C from filing another complaint for *'workmanship issues.”

On February 28, 2019, The Registrar issued a Citation against Respondent, charging a possible violations of A.R.S. §32-1154(a)(3), specifically A.C.C. Rule R4-9-108.[7] A hearing was held on May 15, 2019 before the Office of Administrative Hearing, an independent Arizona State agency. Investigator Smith testified consistently with his JSI Notes and his Compliance Inspection Notes that the project remained in an incomplete state. He said that at the Compliance Inspection he noted that additional work had progressed, but the project was still in a “work-in-progress” resulting in his inability to determine whether there existed any workmanship problems with the work already performed. Notwithstanding, he agreed that SkyGreen’s failure to obtain permitting in advance of undertaking work on this project, taking into account that SkyGreen contracted to complete this project in 4 months and noting that SkyGreen had not completed its contracted work for more than 10 months are acts or failures to act is not work performed in accordance with professional industry standards. SkyGreen did not exercise “…such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.” He indicated that such failures constitute below standard workmanship.[8] He advised that he did conduct a Pre-Hearing Inspection after notice to all parties on May 13, 2019. The Complainant was present for the Pre- Hearing Inspection, the Respondent was not. Mr. Smith testified that at the Pre-Hearing Inspection, the project appeared to him to be completed. SkyGreen’s Qualifying Party, Brian Burgmeier, testified that a building permit was pulled in June of 2018. Further, Mr. Burgmeier testified it was true that: A. SkyGreen did not obtain a permit prior to commencing construction on this project; B. A permit was not obtained - as required by the Directive – before the expiration date for compliance in the Directive of February 1, 2019; C. SkyGreen’s contract with DeSanti required completion of the entire project within four months of the pulling of a building permit for the project. By its terms, the project should have been completed by October of 2018. By the date of compliance required by the Directive on February 1, 2019, the project still remained an uncompleted “work in progress.” D. A certificate of occupancy was granted on this project after building code permit inspections were passed, but such certificate was not obtained before February 1, 2019. Administrative notice is taken of SkyGreen’s prior License record as reflected on the Registrar’s public website on June 3, 2019. Such prior License record reflects SkyGreen’s License was first issued on June 22, 2017 and, since that time, SkyGreen’s license has never been disciplined. The Registrar’s record indicates that one prior Complaint was “Resolved/Settled” in Registrar’s case number 2018-551. SkyGreen’s license history is a mitigating circumstance. SkyGreen’s conduct as set forth in paragraphs 4, 5, 6 and 9 of these Findings of Fact are aggravating circumstances. On the balance, mitigating circumstances and aggravating circumstances are equal in weight in determining the appropriate discipline, if any, in this case. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The credible evidence presented at hearing established that at the time of the complaint there were items of Complainant’s project that needed to be completed. Specifically, the code permit required by the City of Chandler, AZ was not obtained before SkyGreen commenced construction and no such permit was obtained before the deadline called for by the Directive and, although the contract and bid in this case required full performance by October, 2018, by the earliest date presented in the evidence, the project was still a “work in progress” as late as February 1, 2019. Thus, as to the issue of poor workmanship, it is established by a preponderance of the evidence that DeSanti has proven SkyGreen did not perform the contracted work in a professional and workmanlike manner in violation of A.A.C. R4-9- 108, and thereby of A.R.S. § 32-1154(A)(3) and did violate A.R.S. § 32- 1154(A)(3) and A.A.C. R4-9-108,[9]

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend SkyGreen Construction LLC’s, ROC License Number ROC 314249 for three (3) days. 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 40 days from the date of that certification.

Done this day, June 3, 2019. /s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] Agency Record, Page 97.

[3] But see, ¶ 9 herein below detailing Investigator Smith’s testimony that SkyGreen did not exercise “…such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.” He indicated that such failures constitute below standard workmanship. [4] Agency Record, Job Site Inspection Notes, Page 140 [5] Agency Record, Compliance Inspection Notes, Page 142. [6]R4-9-108. Workmanship Standards, A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards... [7] No evidence was presented at hearing to challenge or dispute Mr. Smith’s contention that SkyGreen’s failure to complete the project timely or to pull permitting on the project before commencing construction are below professional industry standards that constitute below standard workmanship... [8] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826