ALJDEC decisions subject to certification as final
2018A-340-CHC-ROC · Registrar of Contractors · 2018-07-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nancy Jo Towry,
COMPLAINANT,
v.
Quality 1st Custom Builders Inc,
License No: 247052
RESPONDENT.
No. 2018A-340-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 11, 2018, 1:00 P.M.
APPEARANCES: Complainant Nancy Jo Towry appeared on her own behalf; Norman Fuller, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Quality 1st Custom Builders. Inc., (Respondent), is the holder of License Number 247052 issued by the Registrar of Contractors (Registrar).
2. On or about January 24, 2018, Nancy Jo Towry (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with room additions constructed by Respondent at Complainants’ residence in Show Low, Arizona, for the stated contract price of $37,067.56.
3. Upon completion of an inspection performed by the Registrar on February 12, 2018, the Registrar issued a Directive, dated February 16, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 6, 2018, as follows:
There is a hump in the floor of the Master Bathroom which has caused the tile to crack. Correct by appropriate means.
There is a hump where the floor of the back addition meets the existing floor. Correct by appropriate means.
The siding on both additions is separating at the joints. Correct by appropriate means.
There are cracks across the CMU stem wall block(s). Contractor should determine cause of the crack and make appropriate repairs if necessary. Correct by appropriate means.
The soffit on back patio cover is separating from existing roof correct by appropriate means.
The laminate floating floor is separating at the end/butt joints. Correct by appropriate means.
The toilet in the Master Bath is not secured correct by appropriate means.
GENERAL NOTE: THERE APPEARS TO BE SOME SETTLING OF THE ADDITIONS. BASED OFF OF A VISUAL INSPECTION THIS SETTLING DOES NOT APPEAR TO BE EXCESSIVE. HOWEVER, IF DURING THE COURSE OF CORRECTIVE WORK THE CONTRACTOR (RESPONDENT) FINDS THERE TO BE SIGNS OF EXCESSIVE SETTLING ALL DAMAGE SHOULD BE REPAIRED WHETHER OR NOT IT IS A SPECIFIC ITEM ON THE DIRECTIVE.
4. After being informed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated March 21, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. 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 June 11, 2018, at 1:00 P.M. Complainant Nancy Towry testified on her own behalf and presented the testimony of Francis Willhite. Respondent presented the testimony of Norman Fuller, owner of Respondent, and Chandra Thompson. Chris Allison, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 10 and Respondent’s exhibit numbers 1 - 8.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified as to the Directive items but stated that without destructive resting, it was difficult to determine the existence or extent of settlement. Regardless, he testified that there appeared to be some settlement and that Respondent was responsible for damage to its work caused by settlement within two years of completion of the project. He testified further that in denying Respondent’s request for an extension of time to address the Directive, he had believed that Respondent had employees other than Norman Fuller to address the Directive but that he was unsure upon what he was basing that belief.
7. Complainant Nancy Towry testified that she entered into a contract with Respondent on or about June 20, 2016, for the addition of two rooms to her residence for the contract amount of $38,000.00, of which she paid $30,205.00. (Complainant’s Exhibit 5). She stated the contract provided for a “2 Year Guarantee on All Work.” She further testified as to the existence of the items listed in the Directive, and her communications with Respondent regarding the progress of the project and the Directive items.
8. Francis Willhite, a friend of Complainant, testified on behalf of Complainant that she noticed a hump in the floor and a crack under the rug all the way across the floor. She stated the crack was getting bigger and differed from the crack in the living room in the existing residence which she stated was just a hairline crack. She also stated that there were issues with doors sticking and that her husband had had to cut the doors.
9. Norman Fuller testified on behalf of Respondent that he agreed there were defects related to the new additions at the residence. He stated, however, that Respondent’s work was performed in conformance with applicable building codes and that the project passed all building inspections. (Respondent’s Exhibit 7). He further stated he believed that the cause of the Directive items was the foundation settling, which he stated was also observable in the existing part of the residence upon which Respondent did not perform work. He further testified that the settling was most likely caused by moisture in the soil.
10. Mr. Fuller also testified that Respondent had not been given a reasonable time to perform corrective work. He stated that at the inspection on February 12, 2018, he informed the Investigator and Complainant that he would be leaving on a long-planned vacation on February 22 and was flying out of state through March 9, 2018. He provided a copy of the airline itinerary. (Respondent’s Exhibit 1). He stated that the Directive was received in the mail on February 23, 2018, and Respondent immediately requested an extension from the Investigator which was denied. (Respondent’s Exhibit 1). Mr. Fuller further testified that he left on his vacation on February 22 and did not return until March 9, 2018. When he returned, and after the Directive deadline had passed, he stated he again requested an extension and an opportunity to return to the site to perform corrective work, which again was denied.
11. Chandra Thomas, Office Manager, testified on behalf of Respondent that she received the Directive in the mail on February 23 and wrote a letter that day to the Investigator requesting an extension of time to perform corrective work because Mr. Fuller had already departed on his planned vacation. (Respondent’s Exhibit 1). She further testified that Mr. Fuller had been the only employee of Respondent for over a year.
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, a 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:
3. Violation of any rule adopted by the registrar.
...
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.
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. 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 the Directive items, but instead attributed their cause to a settling condition of the foundation, a cause which it argued was beyond its control. However, Respondent presented no evidence that the foundation of Complainant’s residence, whether to the new additions or to the existing residence, was caused by settling. Indeed, the Investigator testified that although there appeared to be settling, settling could not be verified without destructive testing. Without such evidence, the Tribunal cannot conclude the defects were attributable to a cause beyond Respondent’s control or were not foreseeable by Respondent. However, even if the settling of the foundation was beyond Respondent’s control or was not foreseeable, neither of which was established by Respondent, the Investigator further testified that while a contractor is not responsible for the actual correction of the settling condition, a contractor is responsible for damages to its work caused by the settling condition within two years of its work. Accordingly, the Tribunal finds that Respondent’s work was not performed in a professional and workmanlike manner and was therefore responsible for correcting the Directive items.
7. Moreover, the Tribunal finds that Respondent did not perform the work in a professional and workmanlike manner and was responsible for the Directive items based on the fact Respondent had expressly guaranteed its work, a guaranty that had no limitations and did not explicitly exclude defects that were arguably not caused directly by Respondent’s work. Had Respondent intended to exclude from its guaranty damage to its work caused by settling, it could have simply done so by including an appropriate exclusion or disclaimer.
8. Complainant has failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22), namely, a failure on the part of Respondent to complete corrective action without a valid justification. Rather, Respondent has presented sufficient evidence to support a finding of a valid justification for not performing timely corrective work prior to the Directive deadline. The Tribunal finds that Respondent was not given a reasonable period of time to perform corrective action after receiving a Directive from the Registrar. Norm Fuller, Respondent’s only employee, departed to go out of state from February 22 to March 6, which comprised 13 days of the time allotted for corrective action. Respondent further submitted it did not receive the Directive until February 23, even though it was dated (and presumably mailed) on February 16, 2018. Even had Respondent received the Directive earlier in the week than February 23, given Mr. Fuller’s vacation plans which were clearly communicated, Respondent did not have sufficient time to coordinate and complete corrective work.
9. It is acknowledged that the Investigator denied Respondent’s February 23, 2018, request for an extension of the Directive deadline. The Investigator testified that even though he was aware of Mr. Fuller’s vacation plans, he had assumed Respondent had other employees that could do the corrective work. This assumption was presumably the reason he denied Respondent’s timely request for an extension of the Directive deadline. Had Respondent had other employees to perform corrective work, the Tribunal would agree that the Investigator’s denial of Complainant’s request was appropriate.
10. Although the Tribunal has made a finding of a valid justification for not performing corrective work, the Tribunal will address Respondent’s argument that it did not receive at least 15 days’ required notice from the date of the issuance of the Directive to perform corrective work. Respondent maintained that it was not afforded the required 15 days because it contended the Directive was not effective until 5 days after mailing. As the Directive was dated February 16, 2018, and the deadline to complete the work was March 6, 2018, Respondent argued that with 5 days added for mailing (presuming it was mailed the day it was dated), Respondent was only allotted 13 days to perform corrective work. However, Respondent’s support for its proposition is misplaced. It cited to A.R.S. § 32-1155(A) which provides that service of the citation and complaint are not complete until five days after deposit in the mail. As is apparent, the statute does not provide a similar extension for the mailing of the Directive. Therefore, Respondent was afforded at least 15 days for corrective action, even though the Tribunal has found that such time was not a reasonable time to perform such action under the circumstances.
11. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), but has failed to establish that it should be disciplined for a violation of A.R.S. § 32-1154(A)(22).
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RECOMMENDED ORDER
Based on the foregoing, it is recommended that Respondent Quality 1st Custom Builders, Inc., be afforded an opportunity to perform the corrective work in the Directive. If, on or before 14 days from the effective date of this Order, Respondent provides written proof that is acceptable to the Registrar that it has corrected those items in the Directive or that Complainant has refused Respondent access to the property to effectuate the corrective work, the Registrar should close the Complaint in this matter.
It is further recommended the Registrar should suspend Respondent’s License No. 247052 for a period of two days if Respondent fails to provide written proof that is acceptable to the Registrar that it has corrected those items in the Directive after being granted access to the property on or before 14 days from the effective date of this Order.
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, July 2, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors