FINACT2018A-2443-CHC-ROC.pdf

2018A-2443-CHC-ROC · Registrar of Contractors · 2018-12-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Michael Wimberly, Case No. 2018-2443 COMPLAINANT, Docket No. 2018A-2443-CHC-ROC v. FINAL ADMINISTRATIVE DECISION Moseley Contracting, LLC, AND ORDER License No. ROC 316271, 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 January 13, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $200.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand- delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated December 4, 2018.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail December 4, 2018 to: Respondent Moseley Contracting LLC 9825 W Maya Way Peoria, AZ 85383 Complainant Michael Wimberly 28419 N Rambling Rock Ct Wittmann, AZ 85361

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. 2018-2443 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 11.14.2018 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael J Wimberly, No. 2018A-2443-CHC-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION Moseley Contracting LLC License No: 316271 RESPONDENT.

HEARING: October 25, 2018 at 8:30 AM. APPEARANCES: Michael J. Wimberly (“Complainant”) appeared on his own behalf with Terry Lynn Wimberly as a witness. Timothy Pennington appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Kenneth Henry appeared on behalf of Moseley Contracting LLC (“Respondent”) with Andrew Moseley and Michael Scott Schenk as witnesses. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar. FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Pursuant to ARIZ. ADMIN. CODE R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website on October 25, 2018. The Registrar issued License No. 316271 for B General Residential contracting license to Respondent on November 14, 2017.1 There is one open complaint against the license, which is presumably Complainant’s.2 The license has an active surety bond from RLI Insurance Company for $9,000.00 effective October 10, 2017.3 Andrew

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACWJsEAP. 2 Id. Id. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.14.2018 ROC LEGAL

Stephan Mosely is listed as the Qualifying Party/Manager on the license.4 Respondent’s address of record on the license is 9825 W Maya Way Peoria, AZ 85383-2933.5

2. On May 31, 2018, the Registrar received a complaint from Complainant

alleging six specific instances poor workmanship by Respondent on Complainant’s new

home project.6 The Registrar assigned Complaint Number 2018-2443 to investigator

Timothy Pennington (“Investigator Pennington”) for review.

3. On June 05, 2018, Investigator Pennington issued a JOBSITE INSPECTION

NOTIFICATION letter to the parties on behalf of the Registrar, advising that he would

conduct an onsite review of the project on June 26, 2018, at 9:00 a.m.7

4. On June 05, 2018, Complainant supplied the Registrar with an addendum

to Complaint Number 2018-2443, along with copies of his Buyer Agreement and

Settlement Statement.8

5. On June 08, 2018, Investigator Pennington reissued the JOBSITE

INSPECTION NOTIFICATION letter to the parties with Complainant’s addendum attached.9

6. On June 26, 2018, Investigator Pennington inspected the work that had

been done on the project to date and took nine photographs of various parts of the project.10 When he was finished, Investigator Pennington drafted inspection notes whereby he substantiated five complaint items.11 7. On June 26, 2018, Investigator Pennington issued a DIRECTIVE FROM THE REGISTRAR to Respondent because he substantiated Complainant’s allegations that the work Respondent had done on Complainant’s project failed to meet minimum workmanship standards in violation of ARIZ. ADMIN. CODE R4-9-108.12 Respondent was put on notice that it had until 5:00 p.m. on July 14, 2018, to notify the Registrar of its Id. 5 Id. See the Registrar’s electronic file at Intake Additional Docs Submitted1.pdf. See the Registrar’s electronic file at Rcc012 Formal Inspection Jobsite1.rtf. See the Registrar’s electronic file at Intake Additional Docs Submitted2.pdf. See the Registrar’s electronic file at Rcc090 Addendum To Formal Complaint2.rtf. See the Registrar’s electronic file at Inv Photographs1.docx. See the Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. 12 See the Registrar’s electronic file at Rcc014 Corrective Work Order1.rtf. RECEIVED 11.14.2018 ROC LEGAL

compliance with the corrective order or face discipline including the issuance of a Citation, discipline of Respondent’s license, and/or a civil penalty pursuant to ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1154(E).13 Respondent was required to remedy

the following by appropriate means:

Complaint Item 1: Roof is short of foam. Not installed per manufacturer specs to meet IRC code of 1” thickness. Complaint Item 2: Valley View Window & Door, ROG 244196; Windows on both sides of the back door- 1-scratched, 1 gasket seal is broken, 1 window front bedroom air bubbles in glass Complaint Item 3: Exterior Laundry door is warped, repair not completed. Complaint Item 4: Cabinets throughout the house are lacking stain, warp doors, trim, and adjustment. Doors need adjustment some look warped, Lack of stain in areas, Crown molding gapes and poor connection to extend length. Complaint Item 5: Floor tile in hallway lifting and moving. 8. On June 28, 2018, the Registrar received a second addendum to Complaint Number 2018-2443 from Complainant whereby Complainant alleged seven additional specific instances poor workmanship against Respondent on the project.14 9. On June 28, 2018, Investigator Pennington issued another JOBSITE INSPECTION NOTIFICATION letter to the parties on behalf of the Registrar, advising that he would conduct an onsite review at the project site by on July 26, 2018, at 3:00 p.m. to address the addendum complaint items submitted to the Registrar by Complainant.15 10. On July 03, 2018, Investigator Pennington mailed the parties a notice of rescheduled jobsite inspection due to a scheduling conflict, whereby both parties were put on notice the inspection would take place on August 01, 2018, at 3:00 p.m.16 11. On July 19, 2018, Investigator Pennington mailed the parties a notice of rescheduled jobsite inspection due to a scheduling conflict, whereby both parties were put on notice the inspection would take place on August 09, 2018, at 3:00 p.m.17 12. On August 09, 2018, Investigator Pennington issued a COMPLIANCE INSPECTION NOTIFICATION letter to the parties on behalf of the Registrar, advising that he

Id. See the Registrar’s electronic file at Intake Additional Docs Submitted1.pdf. See the Registrar’s electronic file at Rcc090 Addendum To Formal Complaint1.rtf. See the Registrar’s electronic file at Rcc063 Re Schedule Of Jobsite Inspection2.rtf. 17 See the Registrar’s electronic file at Rcc063 Re Schedule Of Jobsite Inspection1.rtf. RECEIVED 11.14.2018 ROC LEGAL

would conduct an onsite review at the project site on August 14, 2018, at 3:00 p.m. to determine adherence to his previously issued DIRECTIVE.18 13. Investigator Pennington completed a Compliance Inspection on August

14, 2018, whereby he inspected the work that had been done on the project to date and

took three photographs of various parts of the project. 19 When he was finished,

Investigator Pennington drafted compliance notes in which he found that Respondent

failed to properly remediate the five complaint items outlined in the June 26, 2018

DIRECTIVE.

14. Investigator Pennington forwarded his findings to the Registrar’s legal

department.

15. On August 15, 2018, the Registrar issued a CITATION to Respondent that

charged cause to suspend or revoke Respondent’s license under ARIZ. REV. STAT. §§

32-1154(A)(3) and 32-1154(A)(22), as well as ARIZ. ADMIN. CODE R4-9-108.20 The

CITATION reads, in pertinent parts, as follows:

The Registrar hereby notifies Moseley Contracting, LLC that if the act or acts charged in the written complaint are proved at an administrative hearing, then Moseley Contracting, LLC may be found to have violated the following statutory provisions and rules: Charge 1: 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). Furthermore, on June 26, 2018, the Registrar issued Moseley Contracting, LLC a written directive to take appropriate corrective action. Under A.R.S. § 32-1154(A)(22), Moseley Contracting, LLC’s license may not be revoked or suspended, nor may any other penalty be imposed on Moseley Contracting, LLC, for a failure to take that appropriate corrective action until after a hearing has been held. Therefore, the administrative law judge presiding over the hearing will determine whether the following charge against Moseley Contracting, LLC has merit: Charge 2: 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

See the Registrar’s electronic file at Rcc078 Compliance Jobsite1.rtf. See the Registrar’s electronic file at Rcc104 Compliance Jobsite Inspection Notes1.rtf. 20 See the Registrar’s electronic file at Rch424 Citation Multiple Charges Workmanship W221.rtf. RECEIVED 11.14.2018 ROC LEGAL

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.”). If the administrative law judge determines the validity of any of the charges listed above, then Moseley Contracting, LLC’s license may be subject to suspension or revocation, and Moseley Contracting, LLC may be subject to other penalties provided by law. 16. Respondent submitted a timely ANSWER to the Registrar’s CITATION on August 27, 2018.21 17. The Registrar referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 18. An evidentiary hearing was held on October 25, 2018. Michael J. Wimberly, Terry Lynn Wimberly, and Timothy Pennington testified on behalf of Complainant. Complainant submitted two exhibits. Kenneth Henry, Andrew Moseley, and Michael Scott Schenk testified on behalf of Respondent. Respondent also

submitted two exhibits. The Registrar’s electronic file was also admitted into the record.

HEARING EVIDENCE 19. At the hearing, Mr. Wimberly testified that he purchased a brand new residential home, located at 28419 N Rambling Rock Court, Wittmann, Arizona 85361, on March 29, 2018. Per his purchase agreement, Mr. Wimberly testified, Respondent was contracted to construct the home. During the inspection of the property at the close of escrow, Mr. Wimberly identified a number of deficiencies with various parts of Respondent’s work on the project, including improperly installed roofing, windows, doors, tiles, cabinetry, and subpar application of interior and exterior paint. Although Respondent remediated several areas of concern, Respondent’s failure to address the six aforementioned areas of concern resulted in Complainant filing a complaint with the Registrar. Mr. Wimberly testified that as of the day of the hearing, the only remaining

See the Registrar’s electronic file at Lg Citation2.pdf; see also the Registrar’s electronic file at Lg Corres1.pdf. RECEIVED 11.14.2018 ROC LEGAL

issue on the project was the cabinetry: including a warped door, outstanding handles to be affixed or centered, and stain correction as the colors were inconsistent. 20. Mrs. Wimberly testified that she obtained a remediation bid from another

contractor in August 2018 for $7,500.00 to complete the outstanding repairs, and that

she had already provided a $2,500.00 deposit.22 Mrs. Wimberly denied refusing

Respondent access to the project site.

21. Mr. Moseley testified that he had not received written notification that the

Wimberlys were unhappy with Respondent’s workmanship until they received word

from the Registrar after the complaint was filed, but that he did authorize remediation

work to remedy the issues Complainant identified on the project.

22. Mr. Schenk testified that working on the Wimberly project was stressful for

him, as the homeowners would inspect his work closely and regularly. Mr. Schenk

denied being scheduled to work daily, but agreed that he missed several days on the

project due to suffering an unforeseen illness.23

23. During his testimony Mr. Henry argued that the Wimberly home was sold

“as is” which relieved Respondent of any liability regarding dissatisfaction or

remediation on the project. Mr. Henry admitted, however, that Respondent remediated nearly all of Mr. Wimberly’s areas of concern regarding workmanship on the project, and that Respondent had installed the cabinets supplied directly from the manufacturer in the Wimberly home. Although Mr. Henry questioned whether the cabinetry in the Wimberly home arrived warped and improperly stained from the manufacturer or whether the issues were weather related, Mr. Henry further admitted that one of his trades used a “touch up kit” provided by the manufacturer to even the stain on the Wimberly cabinets. Although Mr. Henry agreed that the Wimberly cabinetry still needs repair, he opined that the homeowners could remediate the stain themselves by utilizing the manufacturer’s “touch up kit.” 24. Investigator Pennington testified that he completed a Prehearing Inspection on October 24, 2018, whereby he noted the cabinetry had not been fully See Complainant Exhibit 2. 23 See Respondent Exhibit A. RECEIVED 11.14.2018 ROC LEGAL

repaired or replaced.24 Investigator Pennington noted that although the Wimberly complaint had been amended twice, no citation had been issued prior to his final inspection. Investigator Pennington also testified that Respondent failed to request a

compliance extension. Lastly, Investigator Pennington testified that Respondent

alleged there had been denial of access to the property, but had not provided any

evidence to substantiate the allegation.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction and has been properly

brought before the Office of Administrative Hearings for adjudication.25

2. Complainant bears the burden of proof to establish cause to discipline

Respondent’s license by a preponderance of the evidence.26 Respondent bears the

burden to establish factors in mitigation of the penalty and affirmative defenses by the

same evidentiary standard.27

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”28 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 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.”29 4. ARIZ. ADMIN. CODE R4-9-108(A) holds, in pertinent part, that “[a] contractor shall perform all work in a professional and workmanlike manner. 5. ARIZ. ADMIN. CODE R4-9-108(B) holds, in pertinent part, that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards. See Complainant Exhibit 1. See Ariz. Rev. Stat. §§ 32-1154(A) and 41-1092 et seq. 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). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 29 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 11.14.2018 ROC LEGAL

6. ARIZ. ADMIN. STAT. § 32-1154(A)(3) holds that a holder of a license may not violate a rule adopted by the Registrar. 7. ARIZ. ADMIN. 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 Registrar has the authority to issue license discipline under this provision,

including summary suspension, revocation, or imposing a civil penalty or recovery fund

award.

8. ARIZ. ADMIN. STAT. § 32-1154(E) holds, in pertinent parts, that the

Registrar 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. 9. Here, it is undisputed that the Registrar issued its DIRECTIVE to Respondent on June 26, 2018, and required Respondent’s full compliance by July 14, 2018. It is also undisputed that Respondent failed to comply. 10. Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely complete Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. 11. None of the “defenses” Respondent raised are viable. Mr. Henry’s argument about the home’s “as is” sales clause is inapplicable to the contract Complainant had with Respondent. Furthermore, Respondent was afforded more time than provided in the DIRECTIVE to complete the Wimberly project, whereby the timely RECEIVED 11.14.2018 ROC LEGAL

replacement of Mr. Schenk could have taken place, but no sound reason(s) have been offered by Respondent failed to complete the project. 12. It is undisputed that Respondent installed the cabinetry in the Wimberly’s

home. Respondent approved the condition of the cabinets and assumed liability for

their condition upon installation. Moreover, Respondent admitted to making at least one

attempt to remediate the condition of the stain on the cabinets, and further admitted

that the warping on the cabinets needed repair.

13. Based upon a review of the credible and relevant evidence in the record,

the tribunal holds that Respondent failed to adhere to a Registrar DIRECTIVE, and had

no affirmative defense(s) for doing so.

14. Because Complainant established by a preponderance of the evidence

that Respondent failed to perform the scope of work outlined in its contractual

agreement with Complainant, specifically noting the five action items identified for

remediation by the Registrar in its DIRECTIVE and the one left outstanding at the time of

hearing, Complainant has shown that Respondent did not completed the job per their

agreement pursuant to ARIZ. ADMIN. CODE R4-9-108, and thereby ARIZ. REV. STAT. § 32-

1154(A)(3). 15. Additionally, because Complainant established by a preponderance of the evidence that Respondent failed to take appropriate corrective action to comply with the DIRECTIVE that was issued in this matter, Complainant has also established cause for the Registrar to suspend or revoke Respondent’s contractor’s license under ARIZ. ADMIN. STAT. § 32-1154(A)(22) and/or issue a civil penalty pursuant to ARIZ. REV. STAT. § 32-1154(E). 16. Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties. RECOMMENDED ORDER Based on the foregoing facts and conclusions of law,

RECEIVED 11.14.2018 ROC LEGAL

IT IS RECOMMENDED that that on the effective date of the final order in this

matter, Respondent Moseley Contracting, LLC License No. 316271 shall be suspended

for two (2) business days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay

the sum of $200.00 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

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 ARIZ. REV. STAT. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty via certified funds. 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 five days from the date of that certification. Done this day, November 13, 2018. /s/ Jenna Clark Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors