FINACT2018A-3898-ROC.pdf

2018A-3898-ROC · Registrar of Contractors · 2019-04-23

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Dave McKibbin, Case No. 2018-3898 COMPLAINANT, Docket No. 2018A-3898-ROC v. ABC Restoration LLC, FINAL ADMINISTRATIVE DECISION DBA: Rod's Restoration, AND ORDER License No. ROC 287187, 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 May 27, 2019. FINAL NOTES On page 2, line 4 replace “15” with “16”. On page 3, line 20 replace “March 7” with “March 5”. On page 8, line 2 replace “in” with “on”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated April 17, 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 April 17, 2019 to: Respondent ABC Restoration LLC DBA: Rod's Restoration PO Box 1190 Chino Valley, AZ 86323 Respondent’s Attorney Jeffrey R Adams Esq 125 Grove Ave PO Box 2522 Prescott, AZ 86301

Complainant Dave McKibbin 330 N Angeline Cir Prescott, AZ 86303 Complainant’s Attorney Laura J. Taylor, Esq. 100 E Union St. Prescott, AZ 86303

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge

Case No. 2018-3898/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.8.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dave McKibbin, No. 2018A-3898-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

ABC Restoration LLC , DBA: Rod's Restoration, License No. ROC 287187, RESPONDENT

HEARING: March 22, 2019, at 1:00 p.m. APPEARANCES: Dave McKibbin (“Complainant”) was represented by Laura J. Taylor, Esq.; ABC Restoration LLC DBA Rod’s Restoration (“Respondent”) was represented by Jeffrey R. Adams, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public

website,1 on October 8, 2013, the Registrar issued License No. ROC 287187, Class

KB-2 for dual general residential contracting and small commercial contracting

Respondent. Rodney Leon Stevens is the qualifying party and a member on the

license.

2. On August 20, 2018, Complainant filed a complaint with the Registrar,

alleging that 20 complaints about the work that Respondent had performed at

Complainant’s residence at 330 N. Angeline Circle, Prescott, Arizona 86303.

See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.8.2019 ROC LEGAL

3. The complaint was assigned to the Registrar’s Investigator Chris Allison for investigation. Investigator Allison performed a jobsite inspection. On October 2, 2018, the Registrar issued a Directive based on Investigator Allison’s inspection that required

Respondent to correct by appropriate means 15 of Complainant’s 20 complaint items

on or before October 19, 2018.

4. Respondent requested an extension of time to comply with the Directive, but

Complainant informed Investigator Allison that he did not agree to the extension and

that Respondent had not performed any work. Investigator Allison referred the matter

to the Registrar’s Legal Department.

5. On November 2, 2018, the Registrar issued a Citation against Respondent’s

contractor’s license, charging cause to suspend or revoke the license under A.R.S. §

32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

6. Mr. Stevens on behalf of Respondent filed a timely written answer to the

Citation, stating that Complainant’s insurance company had not paid Respondent for

the job and that Mr. Stevens had offered Complainant “a proposal to cash out for the

balance due along with a charge of $9,500 for a custom closet package” after the

directive was issued. After Complainant rejected the offer, Respondent indicated that it made further attempts to repair the job and would like to finish the project so that it could get paid by the insurance company. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A videoconference hearing was held from the Registrar’s Flagstaff office on March 22, 2019. Complainant testified on his own behalf. Respondent presented the testimony of three witnesses: (1) Mr. Stevens; (2) Matthew Henning, whom Respondent hired to do drywall repairs, drywall texture, and apply primer and paint to the drywall; and (3) Matthew Menger, Respondent’s construction superintendent on the job. Investigator Allison also testified. 9. At the beginning of the hearing, Respondent’s attorney moved to consolidate the hearing on this complaint with the hearing on a second complaint that Complainant had filed with the Registrar against Respondent. Because the second complaint had RECEIVED 4.8.2019 ROC LEGAL

not yet been referred to the Office of Administrative Hearings, the Administrative Law Judge denied the motion.

ADDITIONAL HEARING EVIDENCE

10. Complainant’s house is large, approximately 3,000 or 3,500 square feet on

two levels. The house was damaged after another contracted attempted to fix a small

leak in the fire suppression system in the upstairs bedroom. After the contractor and

Complainant left the house, a major leak developed in the fire suppression system that

caused a flood and significant damage to the master bedroom, stairwell, and other

areas of the house.

11. Respondent does not advertise and only performs insurance restoration

work after floods, fires, and other insured risks. Emergency Services did the initial

remediation after the flood in Complainant’s house and referred Complainant to

Respondent as a local contractor who could repair the significant damage caused by

the flood. 12. The drywall in Complainant’s house originally had a Santa Fe finish, which is a fairly rough finish that results from a skip trowel technique. Although Complainant’s insurer would not pay for changes or upgrades to finishes in his house, Complainant requested that Respondent apply a smooth finish to the drywall it repaired. Respondent did the best it could to accommodate him. 13. Investigator Allison performed a prehearing jobsite inspection on March 7, 2019. Investigator Allison testified that, at the beginning of the inspection, Mr. Stevens stated that Respondent was willing to correct anything that Complainant remained unsatisfied with. Investigator Allison testified that he asked Complainant if he wanted to proceed with the inspection and Complainant answered he did want to proceed. 14. Investigator Allison submitted his prehearing jobsite inspection notes, which reflected that Respondent had worked on all remaining items but that it had not fully corrected seven items to comply with the Registrar’s and industry standards, in relevant part as follows, showing the original complaint item from the directive in brackets and italics: RECEIVED 4.8.2019 ROC LEGAL

5. [Only painted partial walls causing blotches on nearly every wall.] At the time of the pre-hearing inspection the Complainants [sic] stated that [their] only concerns were on the lower level of the home. They pointed out several areas in the living room, hallway/foyer, and master bedroom. In viewing most of these areas in normal lighting conditions I was unable to see any difference in the paint from the surrounding areas with the exception of the wall behind the log post next to the stairs and a wall in the master bedroom. The wall behind the log post has a long strip that does not match. There also appears to be stain on the wall from the [re-staining] of the log post.

The wall in the master bedroom appears to have been patched. There is visible discoloration on the patch compared to the rest of the wall.

6. [Failed to stain & finish (repair chip) – Inside front door & Threshold.] At the time of the pre-hearing inspection the threshold has been replaced but it does not appear to have been stained to match the door. ....

8. [Failed to sand, stain, finish, & hang wood doors, trim, jambs, throughout house.] At the time of the pre-hearing inspection . . . it does not appear that the doors, trim, and jambs were sanded or re-stained. All door[s] close appropriately with the exception of the right door of the hall closet next to the master bedroom door.

9. [Numerous cracks, Dents, and Seams showing in drywall installed throughout.] At the time of the pre-hearing inspection there were several areas [where] the drywall had dents and dings that were not consistent with the finish. There are also areas that are not sanded smooth to be consistent with finish. 10. [Failed to properly mask-off rocks & tile causing paint & stain damage.] At the time of the pre-hearing inspection there was still paint on the rock and tile.

RECEIVED 4.8.2019 ROC LEGAL

11. [Failed to repair grout on tile floors, stairs and bathroom sinks.] At the time of the pre-hearing inspection the grout was replaced and in compliance with the exception of the stairs where there is cracking grout. .... 16. [Failed to properly install metal clothes racks in master closet. Missing parts.] At the time of the pre-hearing inspection the missing pieces were installed on the metal [clothes] rack. There is one rack that the push button on the adjustable arm does not seem to secure the holes. This however does not seem to be a workmanship issue. The Complainant may need to contact the manufacturer and file a warranty claim.

15. Investigator Allison acknowledged that Complainant had allowed

Respondent access in January 2019, for it to perform repairs. Investigator Allison

opined that the majority of Complainant’s complaints had been resolved and that there

was minimal work remaining.

16. Mr. Stevens testified that the damage to Complainant’s house was a good-

sized loss and that Respondent had performed repairs to electrical, insulation,

plumbing, drywall, and taping, texturing, and painting the drywall repairs, although

Respondent did not have to repair any framing.

17. Mr. Stevens testified that Complainant had removed the lockbox in August

2018, and that Respondent did not have access to the jobsite until the jobsite

inspection in early October 2018. Complainant’s insurer has not paid Respondent for

the job because Complainant refuses to sign off on payment. After the directive was issued, Respondent offered Complainant a financial settlement. Complainant stated that he needed time to think about the settlement but did not reject it until the time allowed for repairs on the directive was almost past. 18. Mr. Stevens testified that during the job, Complainant either refused to sign off on repairs or signed off and then changed his mind. Some walls had been painted eight or nine times. Mr. Stevens testified that Respondent had done everything it could to appease Complainant. RECEIVED 4.8.2019 ROC LEGAL

19. Mr. Stevens testified that it would only take two men two days to perform the remaining repairs. 20. Mr. Manning testified that he tried to smooth out all the divots in the original

Santa Fe finish on the drywall. If an area needed to be repainted, he painted the entire

wall, corner to corner.

21. Mr. Manning and Mr. Menger testified that Complainant and his wife placed

hundreds of pieces of blue tape on the wall to mark areas they were dissatisfied with.

After Respondent performed repairs, Mr. Manning and Mr. Menger would return to find

hundreds more pieces of blue tape on the area that they had just painted.

22. Complainant stated that he preferred to have a completely new contractor

finish repairs on his job.

23. Pursuant to A.A.C. R4-9-116, administrative notice is taken of

Respondent’s license history on the Registrar’s public website on this date.

Respondent’s license was current and in good standing. No discipline has ever been

taken against the license and it appears that Complainant’s complaints are the only

complaints pending against the license.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.2 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s licenses by a preponderance of the evidence.3 Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.4 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”5 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

See A.R.S. § 32-1154(A). See A.R.S. § 41-1092.07(G) (2); A.A.C. R2-19-119(A) and (B) (1); see also Vaiano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B) (2). 5 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 4.8.2019 ROC LEGAL

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.”6

4. Complainant established that Items Nos. 5, 6, 8, 9, 10, and 11 on the

directive, as described in Investigator Allison’s prehearing jobsite inspection notes, still

do not comply with the Registrar’s or industry standards. Although remaining needed

repairs are minimal, according to Investigator Allison, Complainant established

potential cause to suspend or revoke Respondent’s contractor’s license under A.R.S. §

32-1154(A)(3),7 namely A.A.C. R4-9-108.8

5. Because construction is not a perfect art, normally a contractor must be

allowed a reasonable opportunity to remedy poor workmanship before the Registrar will

suspend or revoke the contractor’s license. A.R.S. § 32-1154(A)(22) includes among

the grounds to suspend or revoke a contractor’s license, “[f]ailure 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.” (Emphasis added.) It appears that Complainant

did not allow Respondent to have the full time allowed by the Registrar’s directive to perform repairs because Complainant was considering Respondent’s settlement offer. However, it also appears that Complainant allowed Respondent to perform additional work in January 2019, after the deadline on the directive had expired. Although it is a close question, Respondent did not establish that Complainant failed to provide reasonable access to Respondent to allow it to perform repairs. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). //// //// BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). A.R.S. § 32-1154(A) (3) includes among the grounds to suspend or revoke a contractor’s license, “[v]isolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” RECEIVED 4.8.2019 ROC LEGAL

RECOMMENDED ORDER

Based on the foregoing, it is ordered that, in the effective date of the final order

in this matter, Respondent ABC Restoration LLC’s License No. ROC 287187 shall be

suspended for one business day.

Under the circumstances of this case, it is not appropriate to require Respondent

to pay a civil penalty in any amount under A.R.S. § 32-1154(E).

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, April 5, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors