ALJDEC decisions subject to certification as final

2018A-1235-CHC-ROC · Registrar of Contractors · 2018-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William F Truett,

COMPLAINANT,

v.

Ivan Pat Money d/b/a, Sav On Home Improvement,

License Nos: 313113, 277974, 259636,

RESPONDENT.

No. 2018A-1235-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 6, 2018

APPEARANCES: William Truett, Complainant, Ivan Money, Respondent

and Qualifying Party, Lilly Richardson, Counsel for the Respondent.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On June 14.2018, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing at 8:30 a.m., August 6, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.

Respondent Ivan Pat Money d/b/a, Sav On Home Improvement, (“Sav On”), holds license numbers 313113, 277974 and 259636 issued by the ROC. Ivan Money is Sav On’s qualifying party and owner.

Complainant William F Truett (“Truett”) owns a residence located at 2229 North 58th Street in Phoenix, Arizona.

On February 22, 2018, Sav On and Truett entered into a contract. Under the written contract the scope of the work included Sav On removing old exterior siding, replacing the siding with specified materials, remove and replace siding trim, install guttering, drywall and paint and seal front porch. Preparation work began on February 26, 2018 and, Mr. Money testified the preparation took two days and the actual work continued for two more days until Mr. Truett ordered Mr. Money off of the job site.

On March 15, 2018, Mr. Truett filed a Complaint with the ROC alleging Sav On’s poor workmanship. The Complaint listed numerous specifically described issues and concerns of the Complainant.

In response to that Complaint, ROC Investigator Jack Grimm conducted a job site inspection [“JSI”] on April 24, 2018. Mr. Grimm testified at hearing consistent with his Job Site Inspection Notes in pertinent parts as follows: [emphasis has been added].

Jobsite General Notes: Contractor states the work is incomplete because the homeowner told them to stop working. Homeowner states he asked them to stop working because the work was poor and not improving when he had concerns.

Complaint Item 1: Siding T1-11 needs to be removed and replaced so the ends Sav On not open at the ends of the wall, as was the original siding. I specified 19/32 inch or 5/8 inch material, what was installed is 3/8th's material. Investigator’s Observation: The parties state there was a discussion as to what specific size of material was to be used. The homeowner states he requested the thicker material and the contractor states he sent a picture of the material he was using. This is not documented in any way on the proposal or contract. I am unable to make a determination on this issue. Gaps and poorly installed trim need to be completed and will be addressed in the other complaint items.

Complaint Item 2: All the top trim 1x4's need to be removed and replaced with new wood cut with much more accuracy than has been done so far. While this material is off, correctly nail the siding at the top to the roof joist using 6d galvanized nails at code spacing. Investigator’s Observation: 1x2 trim and 1x4 trim is poorly cut and installed in several locations and needs to be corrected. Observed location with drywall screws in place and not nailed correctly. Governing Rule: Workmanship Rule: 4-9-108(A) poor installation.

Complaint Item 3: Vertical strips must be removed and replaced with 1x3 wood, as was the original and what was removed by your crew. This needs to be cut to the correct angle for the top and length, and installed correctly with 8d galvanized nails at 16" on centers as was the original trim. Investigator’s Observation: Vertical strips in place do not match what was in place previously as I was shown by the homeowner. The strips that have been used appear to be furring strips and Sav On not a good product for this application. 1x2 installed furring strips Sav On not meant to be used for exterior trim applications this is poor quality wood that twists and warps easily in the sun. The installed furring strips Sav On poorly nailed in place and Sav On warping and twisting off the wall with the larger gaps caulked. Governing Rule: Workmanship Rule: 4-9-108(A) incorrect use of material that was installed.

Complaint Item 4: All the siding needs to be nailed along the bottom of the roof joist, using 6d galvanized nails at code spacing. Investigator’s Observation: Siding installed on the gable ends does not appear to be nailed at the bottom edge. Governing Rule: Workmanship Rule: 4-9-108(A) Poor work.

Complaint Item 5: A licensed plumber needs to be hired by you at no extra costs to me, to certify the plumbing disturbed and repaired by your crew. Investigator’s Observation: Contractor states he did contact a license plumber to make repairs and the homeowner states he saw the respondents worker make repairs. The work done was to copper lines and sweat joint repairs were made. Need verifaction (sic) that the repairs have been performed by a license plumber. Governing Rule: Workmanship Rule: 4-9-108(A) Work for this repair needs to be sub’ed to a licensed plumber.

Complaint Item 6: Caulking should not be used to cover miatakes (sic) and cuts made wrong. Investigator’s Observation: Observed lots of caulked used to cover poor wood and poorly installed and/or wood cut to short with large gaps. Governing Rule: Workmanship Rule: 4-9-108(A) poor work

Complaint Item 7: Fascia on the east end of the roof peak is to be refurbished correctly or replaced as was originally discussed. All surfaces both siding and trim Sav On to be primed using a quality exterior primer. Investigator’s Observation: This repair work was not started or complete at the time of the inspection. Completion required. Governing Rule: Workmanship Rule: 4-9-108(A) incomplete work.

Complaint Item 8: Closing up electrical entrance shall be up to code. Investigator’s Observation: Observed large gaps around location where electric conduit entered the home. Siding and/or trim not installed for a tight fit. Governing Rule: Workmanship Rule: 4-9-108(A) poor work.

Complaint Item 9: Fascia at peak shall be repaired correctly with the use of exterior wood glue and screws long enough to reach past the cracks made by your crew. Investigator’s Observation: Homeowner states the workers hammered this location and damaged the wood and did not secure the fascia correctly. Governing Rule: Workmanship Rule: 4-9-108(A) poor work.

Complaint Item 10: All siding applied to the sloped end over the structure shall be removed and replaced with siding cut straight and at a code distance from the singles. Investigator’s Observation: Siding applied on the gable end over the back porch is not straight at the top of the block wall as it is 1/2 inch difference from one end to the other and is not in the same location as the previous siding. Siding and trim on top of the shingled roof slope Sav On touching the roof and need to be above the roofing at a proper distance so the water on the roofing does not effect (sic) the wood. Governing Rule: Workmanship Rule: 4-9-108(A) poor work

Complaint Item 11: The existing board at the peak of the roof and split by your crew shall be replaced and repaired satisfactorily. Investigator’s Observation: The outlook at the peak is split and needs to be repaired. Governing Rule: Workmanship Rule: 4-9-108(A) poor work.

Complaint Item 12: Front porch drywall ceiling seems have to be floated and retextured incorrectly. Investigator’s Observation: Drywall work at the front porch is incomplete and needs to be completed. Governing Rule: Workmanship Rule: 4-9-108(A) incomplete work.

Complaint Item 13: Front porch ceiling as per agreement, this shall be painted with a quality exterior paint of a bright white color after being primed with a self-priming paint. Investigator’s Observation: Porch ceiling needs to be painted when the drywall repairs and texture Sav On completed. Governing Rule: Workmanship Rule: 4-9-108(A) incomplete work...

Complaint Item 14: Stem wall erosion repair at front and back - remove completely the sheet rock mud or stucco repair material (or whatever was installed) by your crew and make the repairs with an acceptable and approved material made exclusively for such repairs. Investigator’s Observation: Contractor states he applied and elastomeric (sic) product to the locations of the eroding concrete stem wall. It does not appear to be drywall mud. This does not appear to be the correct product for this kind of repair and a cement based product should be used for repairs and sealed and painted. Governing Rule: Workmanship Rule: 4-9-108(A) incorrect application of product...

Complaint Item 16: Re-hang wiring and cable disturbed by your crew, with the correct and approved hareware for such application. Investigator’s Observation: Cable and phone wires on the north side appear to have been loosened and Sav On hanging and need to be re-installed to the wall. Governing Rule: Workmanship Rule: 4-9-108(A) incomplete work.

On April 24, 2018, Mr. Grim issued to Sav On a Directive that contained a Corrective Work Order [“CWO”] stating:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 14, 2018. [emphasis added]. You are hereby directed to remedy the following violations by the appropriate means:

Replace 1x2 vertical furring strips that Sav On crooked and warping with a 1x3 product that is meant to be used as exterior trim as per previously removed vertical strips. Nail all installed trim with the correct exterior fasteners. (Drywall screws Sav On not designed for exterior use and will rust).

Correct or replace all poorly cut and/or short cut trim.

Correctly nail all exterior siding with correct exterior fasteners per manufactures recommendations.

Verify that the copper plumbing repair was repaired or approved by a license plumber.

Remove caulk and close gaps correctly where excess caulk was used as filler.

Complete fascia repair as agreed.

Install siding and/or trim at location of electrical conduit for a tight fit.

Correct location of damaged fascia and outlook at peak above back porch.

Correct uneven and sloping siding above block at back patio (bottom of siding is not straight on the block wall).

Remove siding and trim that is touching the shingled slope above the back porch and raise to an appropriate distance so water on roof will not prematurely damage wood. Verify the Sav Ona is flashed correctly.

Complete drywall repairs, texture and paint at front porch ceiling.

Remove incorrect product at stem wall repair and correct with a cement based product.

Re-attach loose wiring above back porch.

NOTE: Unable determine what thickness of siding was to be used as it is not noted in the contract documents and the two parties disagree as to what was to be used.

On May 24, 2018, Mr. Grimm conducted a Compliance Inspection at the Complainant’s home. Mr. Grimm noted the parties have had disagreements as to how the repairs should be completed. The Homeowner states the work is not progressing forward. However, Contractor states the homeowner will not allow them to complete the work and have been asked to leave. Ivan Money the owner of the license was not allowed on site to make repairs and his son Jesse Money was also ordered off the site.

Compliance Findings:

Replace 1x2 vertical furring strips that are crooked and warping with a 1x3 product that is meant to be used as exterior trim as per previously removed vertical strips. Nail all installed trim with the correct exterior fasteners. (Drywall screws are not designed for exterior use and will rust). Incomplete.

Correct or replace all poorly cut and/or short cut trim. Incomplete.

Correctly nail all exterior siding with correct exterior fasteners per manufactures recommendations. Incomplete.

Verify that the copper plumbing repair was repaired or approved by a license plumber. Complete.

Remove caulk and close gaps correctly where excess caulk was used as filler. Incomplete.

Complete fascia repair as agreed. Incomplete.

Install siding and/or trim at location of electrical conduit for a tight fit. Incomplete.

Correct location of damaged fascia and outlook at peak above back porch. Incomplete.

Correct uneven and sloping siding above block at back patio (bottom of siding is not straight on the block wall). Incomplete.

Remove siding and trim that is touching the shingled slope above the back porch and raise to an appropriate distance so water on roof will not prematurely damage wood. Verify the area is flashed correctly. Incomplete.

Complete drywall repairs, texture and paint at front porch ceiling. Incomplete.

Remove incorrect product at stem wall repair and correct with a cement based product. Complete

13. Re-attach loose wiring above back porch. Incomplete.

On May 25, 2018, ROC issued the Citation which is the subject matter of these proceedings. The Citation alleged possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action)

On May 29, 2018, Sav On filed an Answer to the Citation. In its Answer, Sav On stated its willingness to complete repairs, but also stated (among other things) that Sav On had been thrown off the job prior to completion of work and the qualifying party and his son, Jesse Money, [the only other member of Sav On’s LLC], were not permitted to return to the Complainant’s home.

At the hearing, Mr. Grimm testified that the items listed in the Directive constituted deviations from the workmanship standards. He also testified that as of the Compliance Inspection, conducted after the CWO’s deadline for completion, nine of thirteen items listed in the CWO were still incomplete.

At the hearing, Mr. Truett testified that he has significant experience and expertise in the construction industry. He testified that he did not approve of the way Sav On was doing its work. He agreed that he saw his role on this job as the Supervisor of Sav On since they were working on his property. He does not dispute that he made every effort to control and direct the Sav On workers. He admits he banned Mr. Money and his son from coming to the job site because he did not like their work. He confirmed that he has not allowed Sav On back on his property since the date he ordered Mr. Money off his property on March 3, 2018. Mr. Truett admits that, other than permitting Mr. Money to be present at the JSI and Compliance inspections, Sav On was not permitted on the job site to conduct repairs ordered by the CWO for any other reason because he had seen and experienced Sav On’s work, was not satisfied with the work and he did not want Sav On to continue to work on his home.

Respondent, Mr. Money, testified that Sav On admitted it did not comply with the CWO. But, he said, he was prevented from accessing the job site to either complete its contracted work or to do repair the work ordered by the CWO because, after four days on the job site [two of which were devoted to mere site preparation and two days to actually working on the job site], Sav On was ordered to stop work by Mr. Truett on or about March 3, 2018. Mr. Money and his son were ordered not to return to the Complainant’s property prior to the Complainant being filed March 15, 2018. He testified that Sav On was denied access to the job by Mr. Truett starting with his order to stop work on March 3, 2018 and access was denied Sav On before the CWO was ordered and that as of the hearing Sav On was still not able to gain permission to access the job site to finish its project and make any ordered repairs. Mr. Money testified that Mr. Truett injected himself into every aspect of Sav On’s site work and stood at the job site issuing orders and attempting to exercise supervision over every aspect of Sav On’s work. Mr. Truett made every effort to attempt to micromanage Sav On and its employees and interfere with their activity as they tried to work on the job. Mr. Truett requests that Sav On’s license be suspended.

CONCLUSIONS OF LAW

Mr. Truett bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence shows that for the nine items in the ROC’s Directive, Sav On’s work was not done in professional manner, which otherwise is a violation of Ariz. Admin Code section R4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3). However, Respondent did not violate A.R.S. § 32-1154(A)(3) because Sav On was not afforded a reasonable opportunity to remedy the violations identified in the CWO. Respondents should be afforded a reasonable opportunity to cure an infraction before discipline will be imposed:

A breach cannot be said to be material if it is curable, notice to cure is given, and prompt steps taken to cure or to offer assurances of cure. The right of a breaching party to be given an opportunity to cure its own material breach is an ancient equitable principle....Cure is relevant to materiality by virtue of its focus on elimination of the breach and its implied assurance of intent to tender adequate future performance.... Providing a cure notice of curable breaches deemed by the non-breaching party to be sufficiently material to warrant termination for cause is a fundamental prerequisite to termination.... Unless expressly waived, the right to cure is implied in every contract as a matter of law.

Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 18:15 (West Group 2002). See also, Registrar of Contractor’s Substantive Policy Statement 2017.01.

Moreover, where a contractor is denied access to comply with the written Directive, there is no violation of A.R.S. § 32-1154(A)(3):

Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.

BB Ewing Property Management v. Khart Management LLC No. 2015-1168(ALJ Dec. 15:19–25). See also, Registrar of Contractor’s Substantive Policy Statement 2017.01

Inasmuch as, by a preponderance of the evidence, it is shown that Sav On was ordered off the job site prior to completion of its job and was prevented access to the job site to complete repairs ordered by the CWO, Sav On’s failure or inability to time comply with the CWO is a valid justification. By a preponderance of the evidence and as a matter of law, it has not been proven that Sav On violated A.R.S. §32-1154(A)(22).

Considering the nature of the alleged violation at issue, the Administrative Law Judge typically would recommend that Sav On be given an opportunity to correct any workmanship or other deficiencies before imposing discipline against Sav On. However, in light of the facts and circumstances of this matter - including that Mr. Truett ordered Sav On off the job before it was able to complete or correct its work and that Mr. Truett is still unwilling to allow Sav On to complete or correct the work at his house, it is not appropriate to issue an Order requiring Sav On to make the appropriate corrections, nor is it appropriate to suspend or revoke Sav On’s license.

RECOMMENDED ORDER

IT IS RECOMMENDED that it be ordered that that the Citation in Case No. No. 2018A-1235-CHC-ROC be dismissed.

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, August 22, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors