ALJDEC decisions subject to certification as final

2018A-2161-CHC-ROC · Registrar of Contractors · 2018-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tom Heffner,

COMPLAINANT,

v.

Renovation Pros LLC,

License No:

264085, 264086,

RESPONDENT.

No. 2018A-2161-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 28, 2018, 8:30 A.M.

APPEARANCES: Complainant Tom Heffner appeared on his own behalf; Michael Roger, owner of Respondent, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Renovation Pros, LLC (Respondent), is the holder of License Numbers 264085 and 264086 issued by the Registrar of Contractors (Registrar).

2. On or about May 14, 2018, Tom Heffner (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the construction of a retaining wall by Respondent at a residence in Lake Havasu City, Arizona (“project”).

3. The Registrar performed an inspection of the project on May 25, 2018. Thereafter, the Registrar issued a Directive, dated June 1, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by June 18, 2018, as follows:

Complaint Item 1: Contractor placed wall without utility easement permission.

Investigator’s Observation: When constructing a fixed structure (masonry fence/wall) in the utility easement an encroachment easement form (available at Lake Havasu City Hall)(copy enclosed) must be filled out and required approval(s) obtained.

Respondent and or the homeowner should have obtained the encroachment approval prior to any construction. The Respondent started this project without the proper easement encroachment approvals.

RESPONDENT SHOULD OBTAIN THE PROPER EASEMENT ENCROACHMENT APPROVAL(S).

Governing Rule: A.R.S. §32-1154-A. (2) Disregard or departing from plans, specifications or building codes

Complaint Item 2: Unisource guide cable was cemented in behind the wall in the easement.

Investigator’s Observation: This issue would be directly connected with the Easement Encroachment procedure.

RESPONDENT SHOULD OBTAIN THE EASEMENT ENCROACHMENT APPROVALS AND FOLLOW THE DIRECTIVES AND REQUIREMENTS OF THE UTILITY COMPANIES.

Governing Rule: A.R.S. §32-1154-A. (2) Disregard or departing from plans, specifications or building codes

Complaint Item 3: Frontier phone drop line cut.

Investigator’s Observation: The Respondent stated that he had the property "Blue Staked" and the phone line was not properly identified. If correct, that may limit the Respondents financial responsibility for the repair of the line, however the Respondent should contact Frontier Communications and arrange for the repair of the phone line.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 7: Respondent is working Out-of-Scope of his B-3 General Remodeling & Repair license.

Investigator’s Observation: The scope of the B-3 license is limited to work on existing structurers and appurtenances. A new, freestanding wall and gates is outside the scope of the Respondents license.

Governing Rule: A.R.S. §32-1154-A. (16) Contracting Out-of-Scope of license.

4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated June 20, 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)(16) (knowingly contracting beyond the scope of the license);

d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. 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 August 28, 2018, at 8:30 A.M.

6. At the August 28, 2018, hearing, Complainant Tom Heffner testified on his own behalf and presented the testimony of Jesse Crawley. Respondent presented the testimony of Michael Roger, owner. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 8.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the project, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that Respondent had constructed the wall which encroached on a utility easement without applying for approval for an easement encroachment. He further testified that during the course of construction, Respondent had cemented a Unisource guide cable into the footing as well as cutting a Frontier telephone drop line. He stated that Respondent admitted cutting it but had thought it was abandoned. The Investigator further testified that Respondent had performed work beyond the scope of its license because its license did not authorize the construction of a new free standing masonry wall.

8. Complainant Tom Heffner testified, as it related to the Directive items in question, that Respondent did not submit an easement encroachment application, had cemented a Univision guide wire into a footing, and had cut a Frontier cable.

9. Jesse Crawley, a masonry contractor, testified on behalf of Complainant as it related to the Directive items in question, that he confirmed that the wall had partially been built over a utility easement. He confirmed that he had also observed that the Univision guide wire had been partially cemented into a footing and that he also observed that the Frontier cable had been damaged.

10. Michael Roger, Owner of Respondent, testified on behalf of Respondent that he had been operating under a time line imposed by Complainant such that he was required to get the job done as fast as possible. With regard to the easement encroachment, he testified that Complainant agreed that he, Complainant, would financially cover taking down the wall if required to do so by the utility. He further testified that he offered to apply for an easement encroachment after the Directive was issued but that Complainant declined.

11. With regard to the scope of its license, Mr. Roger testified that he had taken a test in November 2017 for a C31 license but did not proceed with the application and mistakenly believed he was permitted to construct a free standing wall with his then-current license.

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, 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 in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

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.

...

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

...

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. A.R.S. § 32-1154(A)(2). 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 of any building codes. Respondent did not dispute the existence of Complaint Items 1 and 2 as listed in the Directive. Any direction there might have been from Complainant to proceed with construction as quickly as possible or dispense with obtaining approval for an easement encroachment is not a legal excuse to depart from or disregard plans or specifications or any building codes.

7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of Complaint Item 3 as listed in the Directive and admitted the telephone line was cut and thought to be abandoned.

8. A.R.S. § 32-1154(A)(16). Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(16) for knowingly contracting beyond the scope of its license. Respondent admitted that its work was beyond the scope of its license but maintained that it was not aware of it at that time and mistakenly believed it could proceed with the work with its then-current license. However, Mr. Rogers admitted that in November 2017 he had taken a test for the license that would have covered construction of free standing masonry walls but did not proceed with obtaining that license. Given that Respondent had been proceeding to obtain the correct license, it can be reasonably inferred that Respondent was well aware of the scope of that license and the limitations of its then-current license.

9. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action for Complaint Numbers 2 and 3. There was no evidence presented that Respondent made any effort to correct or resolve Complaint Items 2 and 3. However, the evidence presented showed that in response to the Directive, Respondent offered to correct Complaint Item 1 by submitting an easement encroachment application on Complainant’s behalf. (Complainant’s Exhibit 6). Respondent in essence rejected that offer and responded by stating that such an application would be beyond the scope of Respondent’s license. (Complainant’s Exhibit 6). However, Complainant presented no evidence that a contractor would need a license to apply for approval of an easement encroachment after the fact for a wall that was already constructed in whole or in part. Thus, as Respondent’s effort to correct Complaint Item 1 was rejected or prevented by Complainant, there is no finding made that there is cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(2) with respect to Complaint Item 1.

10. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2) (Complaint Item 2), A.R.S. § 32-1154(A)(3) (Complaint Item 3), A.R.S. § 32-1154(A)(16), 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, Renovation Pros, LLC’s, License Numbers 264085 and 264086 are suspended for two days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.

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, September 17, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors