ALJDEC decisions subject to certification as final

2018A-4120-CHC-ROC · Registrar of Contractors · 2019-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 27, 2019, 1:00 P.M. APPEARANCES: Complainant Michael Briguglio appeared on his own behalf; Gary May, Managing Member and Qualifying Party, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. May Construction Group, LLC (Respondent), is the holder of License Number 301016 issued by the Registrar of Contractors (Registrar). 2. On or about August 31, 2018, Michael T. Briguglio (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with the construction of a residence in Scottsdale, Arizona (“project”). 3. The Registrar performed an inspection of the project on October 1, 2018. Thereafter, the Registrar issued a Directive, dated November 20, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 14, 2018, as follows: Complaint Item 1: Doors: Laundry, pantry door rollers, water damage, drags. Investigator’s Observation: It was stated that the rollers would be replaced by the Respondent. Complaint item 2: Powder room, master water closet, guest bedroom and bath, office and closet (scratches, dents, cut to short, bad repair). Investigator’s observation: Doors were cut by manufacturer and meet standards. It was observed that the guest bathroom was damaged and needs repair where towel hook was to be installed. Complaint item 5: Hardware on front door is temporary installed during construction, wrong deadbolts in patio and garage door, rekey to match. Investigator’s observation: Cannot substantiate as to the agreement of rekeying of all door keys to match. It was stated the permanent hardware was onsite and not installed at time of inspection. Complaint item 9: Fabrication: Faucet sink stoppers don’t work due to being installed improperly. Investigator’s observation: It was observed that the faucets were missed place in counter top at time of installation, not allowing the stoppers to work correctly.

Complaint item 11: Stucco: Damaged by cleaning company and window company under many windows. Investigator’s observation: Cannot substantiate as to the cause, but stucco has discoloration. Complaint item 12: Cement: Holes on the east patio and garage was improperly repaired. Investigator’s observation: Repairs to concrete at the east patio do not match existing concrete. Complaint item 13: Paint: Ceiling around light fixtures, Kitchen pantry, some base boards and trim, and few cracks. Investigator’s observation: Substantiated that there are some areas around light fixtures that need touch up. 4. The Registrar thereafter received an Addendum to the Complaint and performed another inspection on January 15, 2019, and issued a Directive on February 12, 2019, requiring Respondent to correct other various alleged deficiencies in Respondent’s work by March 4, 2019, as follows: Complaint Item 1: Paint over drywall patches throughout. Investigator’s Observation: It was observed that the paint after repair of the drywall did not blend in with existing paint at patio and living /great room ceiling areas. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) Complaint Item 3: Doors/Frames Investigator’s Observation: It was observed that doors thru out need to be addressed as to painting and that the doors are not installed to workmanship standards. Also there are doors that stick that need to be addressed due to the fact that frame is out of square. Check all doors. If the door has manufactured issues the ROC can address only the workmanship of installation and painting of the doors, if not already finished by the manufacturer and not painted by the contractor. Inclusive of front door. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) Complaint Item 6: Dead bolt on south patio door is no longer locking. Investigator’s Observation: It was observed that the door does not locking or latching correctly. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) Complaint Item 8: Wooden threshold between north hallway and office broken by painters. Investigator’s Observation: It was observed that the threshold was cracked cannot determine as to the cause of the and why it is broken. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) Complaint Item 12: Opening at bypass doors in laundry room is not square. Investigator’s Observation: It was observed that the opening was not square at time of first inspection and the Respondent stated it would be addressed at time of first inspection. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) Complaint Item 13: Island kitchen light does not be secured to the ceiling. Investigator’s Observation: It was observed that the light fixture is pulling away from ceiling. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108 (A, B) 5. After the Registrar was informed by Complainant that corrective work had not been fully performed, the Registrar then issued a Citation to Respondent, dated March 26, 2019, 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). 6. 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 27, 2019, at 1:00 P.M. 7. At the August 27, 2019, hearing, Complainant Michael Briguglio testified on his own behalf and presented the testimony of Jeanine Briguglio; Respondent presented the testimony of Gary May, Managing Member and Qualifying Party, Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 7, and Respondent’s exhibit numbers 1 - 41.[1] Respondent’s second exhibit number 41 (different than Respondent’s exhibit number 41 admitted at hearing) and exhibit number 42 were submitted after the hearing and therefore were not admitted and not considered by the Tribunal. 8. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified as to the Directive items and that he did not conduct a Compliance Inspection because Respondent admitted that all Directive items were not completed. 9. Complainant Michael Briguglio testified that he moved into the home in October 2017 and had an extensive punch list. He said one year later the list had not been fully addressed so he proceeded with the Complaint. He stated the home was sold in April 2019. 10. Jeanine Briguglio, wife of Complainant, testified on behalf of Complainant that some Directive items were corrected, but that Complaint Item Numbers 2, 5, and 9 of the November 20, 2018, Directive and Complaint Item Numbers 3 and 12 of the February 12, 2019, Directive were not completed. Specifically, she mentioned that doors had been sticking, there had been painting over plastic on the doors, and that there were scratches and dents. She stated she signed off on these items but did so with the expectation that Respondent would have the items inspected to determine if the repairs were properly done. (Respondent’s Exhibit 1). 11. Gary May, Managing Member and Qualifying Party of Respondent, testified on behalf of Respondent that Ms. Briguglio signed off on all Directive items with the exception of Complaint Item Number 9. (Respondent’s Exhibit 1). With respect to Complaint Item Number 9 regarding the sinks, he stated that Ms. Briguglio acknowledged that Respondent had offered to replace the sink stoppers with pop up stoppers to remedy the issue. (Respondent’s Exhibit 1). He further testified that he also offered such to the new buyer of the residence but that the new buyer indicated that the repair would not be necessary. 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:

3. Violation of any rule adopted by the registrar. …

22. Failure to take appropriate corrective action to comply with his 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.….

5. As it relates to such grounds under 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)(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). With respect to the Directive items in question, Ms. Briguglio acknowledged and signed off that Complaint Item Number 2 of the November 20, 2019, Directive was corrected on December 28, 2018. However, there was no evidence presented that there was a similar sign off on Compliant Item Numbers 3 and 12 of the February 12, 2019, Directive. Further, the evidence presented by Respondent did not persuade the Tribunal that they had in fact been corrected. Moreover, even though the parties disputed whether these items were disclosed to the prospective buyer of the residence, the Tribunal does not find such disclosure or nondisclosure (or the new buyer’s acceptance of the residence) of any particular significance in resolving the issues before it. 7. With regard to Complaint Item Number 9 of the November 20, 2019, Directive, the parties acknowledged that it was not corrected. However, there was no dispute that Respondent offered a resolution in October 2018 and that Ms. Briguglio on April 11, 2019, acknowledged such on offer. (Respondent’s Exhibit 1). The evidence was not entirely clear why Respondent did not go forward with its proposed repair but it appears that Complainant delayed such corrective work pending the new buyer’s inspection of the residence. (Respondent’s Exhibit 1). The evidence suggested that the new buyer was not concerned with the sinks, and perhaps that was the reason the corrective work in that regard never went forward. In any case, it does not appear that the failure to so proceed in correcting this item was the fault of Respondent and therefore the Tribunal finds a valid justification for not correcting this item. 8. With respect to Complaint Item Number 5 of the November 20, 2019, Directive relating to any resulting markings or hole left by the replacement of the door hardware, the Tribunal does not find sufficient evidence to show that such a repair by Respondent did not meet minimum workmanship standards. 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 without a valid justification. In that Respondent failed to fully correct Complaint Item Numbers 3 and 12 of the February 12, 2019, Directive, Respondent thus did not fully complete the Directive. There was no evidence presented of a valid justification for not correcting such items. However, the Tribunal as stated above does find a valid justification for not correcting Complaint Item Number 9 of the November 20, 2019, Directive. 10. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) (relating to Complaint Item Numbers 3 and 12 of the February 12, 2019, Directive) 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, May Construction Group, LLC’s, License Number 301016 is suspended for one day. 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 23, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s submissions to the Arizona Office of Administrative Hearings.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826