FINACT2018A-3821-ROC.pdf

2018A-3821-ROC · Registrar of Contractors · 2019-03-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Beth El Congregation, Case No. 2018-3821 COMPLAINANT, Docket No. 2018A-3821-ROC v. FINAL ADMINISTRATIVE DECISION A S A P Door Repair and Service Inc., AND ORDER License Nos. ROC 146316, 184258, and 249906 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 April 9, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $25.00 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 FINAL NOTE On page 3, line 17 replace “January 18, 2018” with “January 18, 2019.” Dated February 28, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail February 28, 2019 to: Respondent A S A P Door Repair and Service Inc PO Box 11422 Glendale, AZ 85318

A S A P Door Repair and Service Inc 5101 W Whispering Wind Dr Glendale, AZ 85310-2909

Complainant Beth El Congregation 1118 W Glendale Ave Phoenix, AZ 85021-8635 Gregory Y. Harris Esq. 201 East Washington Street, Ste. 1200 Phoenix, AZ 85004 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 Complainant’s Attorney at email address of record with Registrar Office of Administrative Hearings Jenna Clark, Administrative Law Judge

Case No. 2018-3821 / 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 2.7.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Beth El Congregation1, No. 2018A-3821-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION ASAP Door Repair and Service, Inc., License Nos. ROC 146316, 184258, 249906 RESPONDENT. HEARING: January 18, 2019 at 8:30 AM. APPEARANCES: Gregory Harris, Esq., appeared on behalf of Beth El Congregation (“Complainant”) with Steve Klein and Herbert Dreiseszun as witnesses. Rachelle Benishek appeared on behalf of ASAP Door Repair and Service, Inc. with Jesse Stansfield as a witness. 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 Arizona Registrar of Contractors

(“ROC”).

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. On June 25, 1999, the ROC issued License No. 146316 for Specialty

Dual CR-5 contracting as restricted by the ROC to Respondent.2 Respondent’s address of record for the license is PO Box 11422 Glendale, AZ 85318-1422. On April 29, 2003, the ROC issued License No. 184258 for Specialty Dual CR-5 contracting as restricted

Both parties waived remanded and reissuance of NOTICE OF HEARING to correct deficiency. The complaint was filed by Herbert Dreiseszun, in his capacity as an employee, on behalf of Complainant Beth El Congregation. 2 See https://roc.az.gov/contractor-search?Id=a0Yt000000ACRUjEAP. Respondent’s license is restricted to doors and loading dock installation, and repairs. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 2.7.2019 ROC LEGAL

by the ROC to Respondent.3 Respondent’s address of record for the license is 5101 W Whispering Wind Drive Glendale, AZ 85310-2909. On October 17, 2008, the ROC issued License No. 249906 for Specialty Dual CR-56 Welding contracting to

Respondent.4 Respondent’s address of record for the license is PO Box 11422

Glendale, AZ 85318-1422.

2. Mark James Benishek and Rachelle Renee Benishek are listed on all

three licenses as the Officer/Qualifying Party.

3. Administrative notice is taken of Respondent’s prior License record, for

License No. 146316, as reflected on the Registrar’s public website on January 18,

2019. Such prior License record reflects that Respondent’s license has not previously

been issued formal discipline by the Registrar. Although, the record does reflect that

there is one open complaint against Respondent’s license, which is presumed to be

related to this matter. Respondent has an active $11,250.00 surety bond through

Contractors Bonding & Insurance Company effective June 13, 2001.

4. On August 15, 2018, Complainant submitted a complaint to the ROC

against Respondent’s License No. 146316 alleging poor workmanship. The ROC

received the complaint on August 16, 2018, whereby it was designated Complaint No. 2018-3821 and assigned to Steve Klein for investigation. 5. On August 17, 2018, the ROC issued a JOBSITE INSPECTION NOTIFICATION LETTER to the parties, advising that a project inspection would be conducted by Investigator Klein on September 24, 2018, at 2:30 p.m.5 6. On September 24, 2018, Investigator Klein presented to the project site for his inspection. Respondent was not present. Investigator Klein conducted a review of the contract executed between the parties. He also inspected the work that had been

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACRR0EAP. Respondent’s license is restricted to doors and related hardware. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACKLOEA5. 5 See the ROC’s electronic file at pages 50-51. RECEIVED 2.7.2019 ROC LEGAL

performed on the project and took photographs.6 When he was finished, Investigator Klein drafted his INSPECTION NOTES.7 7. On September 24, 2018, Investigator Klein issued a DIRECTIVE FROM THE

REGISTRAR to Respondent because he substantiated Complainant’s allegation that the

work Respondent had done on the project failed to meet minimum workmanship

standards.8 Respondent was put on notice that it had until October 11, 2018, to notify

the ROC of its compliance with the corrective order or face discipline pursuant to ARIZ.

ADMIN. CODE R4-9-108, and ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1154(E).9

8. On October 18, 2018, the ROC issued a CITATION AND COMPLAINT to

Respondent under ARIZ. REV. STAT. § 32-1155(A).10 Respondent was given until

November 02, 2018, to respond with its ANSWER.11

9. Although Respondent sent several correspondences to the ROC after the

issuance of the CITATION, Respondent failed to submit a formal ANSWER by the noticed

deadline.

10. On November 27, 2018, the ROC referred this matter to the Office of

Administrative Hearings, an independent state agency, for an evidentiary hearing on

January 18, 2018. Per the NOTICE OF HEARING the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges: Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby a violation of A.R.S. § 32-1154(A)(3). 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 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.”).

See the ROC’s electronic file at page 63. See the ROC’s electronic file at pages 52-62. See the ROC’s electronic file at pages 86-87. Id. See the ROC’s electronic file at pages 66-72. 11 Id. RECEIVED 2.7.2019 ROC LEGAL

HEARING EVIDENCE

11. Complainant called Herbert Dreiseszun and Investigator Klein to testify as

witnesses, and submitted exhibits 1-9 into the record. Rachelle Benishek and Jesse

Stansfield testified on behalf of Respondent.

Herbert Dreiseszun’s testimony

12. Mr. Dreiseszun testified that he is employed by Complainant as their Vice

President of Facilities. His primary job duty, as it has been for the past forty years, is to

take care of the synagogue’s grounds located at 1118 West Glendale Ave. Phoenix, AZ

85021.

13. Per Mr. Dreiseszun, sometime in December of 2017 the double fire doors

in the synagogue’s social hall began to fail. The doors were solid wood emergency exit

doors that provided parishioners outside access in the event of a fire or other

emergency. The doors had originally been installed sometime in 1967. Mr. Dreiseszun

reached out to Respondent, as he had an existing professional relationship with the company, to see if Complainant’s fire doors could be replaced with the same or similar quality doors. 14. On February 07, 2018, Mr. Dreiseszun received a quote from Respondent for $7,140.85, for “removal and replacement of one pair of exterior wood doors with new inground closers, pivots and panics.”12 Respondent also included the advisory “no warranty on exterior wood doors” on the quote.13 Complainant agreed to pay Respondent’s quote and signed its agreement on February 07, 2018.14 15. On April 04, 2018, Respondent issued Invoice No. 38131 to Complainant which detailed the completion of the project whereby Respondent “removed and replaced one pair of exterior wood doors with new inground closers, pivots and panics.”15 The invoice did not include an advisory regarding the warranty of the doors. Per the invoice, payment was due on or before April 19, 2018.

See the ROC’s electronic file at page 35. Id. Id. 15 See the ROC’s electronic file at page 46. RECEIVED 2.7.2019 ROC LEGAL

16. Complainant issued Check No. 1321 to Respondent on or about April 11, 2018, for $7,140.85.16 17. Mr. Dreiseszun testified that the new doors Respondent installed began to

fail approximately three months afterward. Specifically, Mr. Dreiseszun testified that

pieces of the bottom of the doors fell off in chucks, that the inground pivots broke out of

the bottom of each door, and that the arm broke out of the bottom of the doors.

18. Mr. Dreiseszun testified that upon inspection he discovered that the doors

Respondent installed were not solid wood, but particle board. Mr. Dreiseszun further

testified he could not locate any signs of weathering or external damage to the doors.

19. Mr. Dreiseszun testified that he contacted Respondent on or about July

31, 2018, to inform Respondent about the failed doors, and the fact that the doors were

not solid wood. Per Mr. Dreiseszun, he was told that Respondent’s supplier could not

“guarantee” wood doors.

20. Respondent offered to remediate the issue by installing “oak-like”

fiberglass doors for Complainant at cost, for $2,600.00, which would come with a ten

year warranty. Complainant declined Respondent’s offer, opting instead to file a

complaint with the ROC on August 15, 2018. Investigator Klein’s testimony 21. Investigator Klein testified that the ROC received Complainant’s complaint on August 16, 2018, including copies of the related quote and invoice, and a copy of the check Complainant gave Respondent to fund the project. 22. Investigator Klein testified that he believed the damage he observed on the underlying doors at issue were not caused by Complainant’s use, nature, or an “act of God.” Rather, Investigator Klein testified, the damage was likely caused by faulty installation but he could not state for certain. 23. Investigator Klein’s INSPECTION NOTES state, in pertinent part, “It appears some kind of stress caused the door closer to split the bottoms of both doors. It also looks like metal screws were used instead of wood screws to mount the door closers.”17 See the ROC’s electronic file at page 47. 17 See the ROC’s electronic file at page 32 RECEIVED 2.7.2019 ROC LEGAL

24. After the DIRECTIVE was issued Investigator Klein received a written objection from Respondent.18 Overall, Respondent argued that Complainant made a “poor decision” in choosing wood over metal doors, and that the ROC’s DIRECTIVE

wrongfully punished Respondent. Respondent also noted that it had offered to install

metal doors that came with a warranty for a “very reasonable” fee.

25. Investigator Klein contacted Complainant on October 16, 2018, to see if

the DIRECTIVE had been satisfied. Because Mr. Dreiseszun informed Investigator Klein

that no action had been taken by Respondent to remedy the condition of the doors,

Investigator Klein declined to conduct an additional inspection. Instead, Investigator

Klein forwarded to the case to the ROC’s legal department for review.

26. Investigator Klein did not conduct a prehearing inspection of the project.

Rachelle Benishek’s testimony

27. Ms. Benishek testified that she never visited the project site, and therefore

never inspected the installation of the doors at issue.

28. Ms. Benishek testified that Complainant was warned against purchasing

wood doors, and that Complainant was advised prior to the doors’ installation that they

did not have a warranty. 29. Ms. Benishek denied using old closers, and also denied using inappropriate screws on the project. 30. Ms. Benishek testified that wood screws, not metal, were used on the project.19 31. Ms. Benishek argued that replacing the doors would have been a “waste of time,” even though she admitted that she had not received reports from other clients with doors similar to Complainant’s alleging failure in less than one year from their installation date. 32. Per Ms. Benishek, Respondent has never installed “solid” wood doors and would not know where to locate any. Ms. Benishek testified that all of the “wood” doors Respondent uses on projects contain some amount of particle board. See the ROC’s electronic file at pages 23 and 27. 19 See the ROC’s electronic file at pages 20-21. RECEIVED 2.7.2019 ROC LEGAL

Jesse Stansfield’s testimony 33. Mr. Stansfield has been employed by Respondent for thirteen years, and currently works as their Lead Technician. 34. Mr. Stansfield testified that he participated in the quote issued to Complainant, but was not present for the installation of the doors. Mr. Stansfield also testified that he did not inspect the doors upon installation. 35. Per Mr. Stansfield, Complainant’s old doors were not inspected by Respondent prior to the installation of the new set of doors. 36. Mr. Stansfield testified that he believed the “solid core” doors that Respondent installed for Complainant, which did contain particle board, could last anywhere from one to thirty years before failing, based on use and other conditions. Mr. Stansfield agreed that he did not observe Complainant’s use of the doors. Mr. Stansfield also agreed that he did not observe any damage to the exterior of the doors. 37. Mr. Stansfield guesstimated that the doors Respondent installed could have been pushed too far open, or pushed too forcefully, to fail as soon as they did and in the manner they did. CONCLUSIONS OF LAW 1. This matter lies within the ROC’s jurisdiction.20 2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.21 3. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.22 Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.23

See ARIZ. REV. STAT. § 32-1154(A). See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). 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). 23 See ARIZ. ADMIN. CODE R2-19-119(B)(2). RECEIVED 2.7.2019 ROC LEGAL

4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”24 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.”25

5. ARIZ. ADMIN. CODE R4-9-108 holds, in pertinent part, that a contractor

shall perform all work in a professional and workmanlike manner and that a contractor

shall perform all work in accordance with any applicable building codes and

professional industry standards.

6. ARIZ. REV. STAT. § 32-1154(A)(3) holds that a holder of a license may not

violate a rule adopted by the ROC.

7. ARIZ. REV. 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 ROC 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. REV. STAT. § 32-1154(E) holds, in pertinent parts, that the ROC 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 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 25 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 2.7.2019 ROC LEGAL

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. It is clear from a review of the record that the parties were never of a

common understanding as to what exact material, or quality thereof, was to be used in

the underlying project. The contract executed between the parties offers no further

clarifications between “solid wood” and “solid core” doors. However, because the

related CITATION only addresses the workmanship of the doors Respondent installed,

the contract issue is moot and will not be addressed further.

10. Here, Complainant has established that it fully paid for the installation of

new doors with pivots and closers, that the doors failed approximately three months

after installation, and that the failure did not occur as a result of use or exterior

damage.

11. It is undisputed that the ROC issued its DIRECTIVE to Respondent on

September 24, 2018, 2018, and required Respondent’s full compliance by October 11,

2018, 2018. It is also undisputed that Respondent failed to comply.

12. In the present case, Respondent has not provided any mitigating evidence or raised any affirmative defenses sufficient to overcome or rebut the credible evidence provided by Complainant. 13. Respondent’s argument that the doors it installed for Complainant were without warranty is inconsequential, as Respondent maintained a duty under ARIZ. ADMIN. CODE R4-9-108 to complete the project in adherence with the ROC’s workmanship standards. Additionally, Respondent had a duty under ARIZ. REV. STAT. § 32-1154(A)(22) to remediate the issues brought to its attention by the ROC, which it failed to address. 14. Because Complainant has shown that Respondent failed to comply with the ROC’s DIRECTIVE, Complainant established cause to suspend or revoke Respondent’s contractor’s license under ARIZ. REV. STAT. §§ 32-1154(A)(3), 32- 1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108. RECEIVED 2.7.2019 ROC LEGAL

RECOMMENDED ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS RECOMMENDED that five days after the effective date of the FINAL ORDER

in this matter, Respondent ASAP Door Repair and Service, Inc., License No. 146316

be suspended for one day based on its violation of ARIZ. ADMIN. CODE R4-9-108 and

ARIZ. REV. STAT. §§ 32-1154(A)(3) and 32-1154(A)(22).

IT IS FURTHER RECOMMENDED that Respondent shall pay the sum of $25.00

as a civil penalty pursuant to ARIZ. REV. STAT. § 32-1154(E). IT IS FURTHER ORDERED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the FINAL ORDER, the ROC shall revoke Respondent’s license, effective on such deadline date. 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, February 06, 2019. /s/ Jenna Clark Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors