ALJDEC decisions subject to certification as final

2018A-428-CHC-ROC · Registrar of Contractors · 2018-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anthony Cavalier,

COMPLAINANT,

R M B Inc dba,

Apple Construction Company Coast Garage Doors ,

License No: 215332

RESPONDENT.

No. 2018A-428-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 7, 2018, 1:00 P.M.

APPEARANCES: Complainant Anthony Cavalier appeared on his own behalf; Kim Barnes, President, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. R M B, Inc., dba Apple Construction Company Coast Garage Doors (Respondent), is the holder of License Number 215332 issued by the Registrar of Contractors (Registrar).

2. On or about January 29, 2018, Anthony Cavalier (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and work not done to specifications in connection with the construction of an awning and block wall by Respondent at Complainant’s residence in Bullhead City, Arizona.

3. After an inspection performed by the Registrar on February 15, 2018, the Registrar issued a Directive, dated March 20, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 9, 2018, as follows:

Complaint Item 1: Awning Issues: Roofing material used not to plan.

Investigator’s Observation: Contractors generally reserve the right to use materials of equal or greater quality. The Respondent has not been able to produce a manufacturers brochure or installation information of the roofing products that were used, as requested by the ROC in a 3/12/18 e-mail.

Respondent has stated in a 3/20/18 e-mail response to the ROC that she would like to make an additional application of a roofing product called GacoRoof Silicone Roof Coating. Installation specifications viewed (by the ROC) at the GacoRoof website appear to indicate that this product is suitable and that it may be applied to flat roofs of at least 1/2inch in 12 pitch and greater.

Respondent should make proper application of approved roofing products designed to function at minimal roof pitches. Respondent should follow all manufacturer’s installation instruction.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 2: Sheathing and roof pitch not to plan.

Investigator’s Observation: The approved plan states that "90# Rolled Roofing, requiring a minimum pitch of 1 in 12 slope". The Respondent used an alternative roof covering system. The Respondent has not produced any manufacturer’s installation documentation stating that the materials used were/are suitable for flat roof installations.

Respondent should make proper application of approved roofing products designed to function at minimal roof pitches. Respondent should follow all manufacturer’s installation instruction.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 3: Post anchors not to plan.

Investigator’s Observation: Plan calls for "treated posts or 1-inch separation from concrete." Respondent reused several of the existing post bases without the 1-inch metal riser. If the Respondent used treated posts then the code is satisfied, if not the Respondent should either replace the posts with treated posts or install the 1-inch metal riser.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 6: Removed the finished roof edging West side and did not replace.

Investigator’s Observation: New fascia appears unfinished/incomplete on west end of patio.

RESPONDENT SHOULD PROPERLY COMPLETE MATCHING SURROUNDING AREA AS CLOSELY AS POSSIBLE.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 8: Threw trash, broken block and old footings in wash (city property).

Investigator’s Observation: It appears that there may have been some misunderstanding as to where the complainant told the Respondent they could dispose of some construction rubble. The approved plans the Respondent submitted to the city shows the area in question is city property and the Complainant would not have had any authority to allow the Respondent to dispose of the construction debris on city property.

RESPONDENT SHOULD PROPERLY CLEAN UP THE DEBRIS ON CITY PROPERTY.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 11: Hollow sounding concrete. Will crack. New concrete higher than adjacent existing concrete.

Investigator’s Observation: Hollow sounding concrete in itself, is not an indication of any structural problem and in itself, not a requirement to replace concrete.

Hollow sounding concrete is often the result of concrete "curling" which is a condition that occurs as concrete dries. Often this results in a difference in elevation between two adjacent concrete slabs. The Workmanship Standards for Licensed Contractors (WSLC) states that the difference in elevation between two adjacent slabs should not be a trip hazard. The Respondents new concrete installations are significant trip hazards.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

4. The Registrar performed a compliance inspection on April 23, 2018, at which time the Registrar observed that corrective work had not been started. The Registrar also performed an initial inspection that same day relating to an addendum filed by Complainant to his Complaint on April 23, 2018. As a result, the Registrar issued an additional Directive, dated May 2, 2018, requiring additional alleged deficiencies to be corrected by May 21, 2018, as follows:

Complaint Item 1: Block wall cracks

Investigator’s Observation: Stair step cracks in mortar joints can result from normal settlement and do not necessarily indicate a structural problem.

Cracks 1/8-inch or more should be filled. If cracks exceed 1/8-inch or if the crack extends across the block itself, then a structural problem may exist.

Contractor should determine cause of the crack(s) and correct by appropriate methods.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 4: 3 to 4 roof leaks. Investigator’s Observation: Roof leaks were noted in areas where new patio meets existing house. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 5: Roof material not to plan.

Investigator’s Observation: The approved plan has no notation as to what the roof pitch was supposed to be. The only indication of a roof pitch comes from a roofing material selection area of the plan that has the box for Rolled Roofing checked. Rolled roofing requires a minimum pitch of 1 in 12. The Respondent used an alternative roofing material she claims is suitable for lesser pitched roof structurers.

Contractors generally reserve the right to use materials of equal or greater quality.

However the Respondent has not provided any verifiable documentation as to the roofing materials used nor any manufacturers installation information indicating that the product used is suitable for a less than a 1 in 12 pitch.

If Respondent cannot produce verifiable proof/documentation that the roofing materials applied are suitable then the Respondent should remove the current roofing and apply the #90 rolled roofing indicated on the plan and properly rework the entire patio structure to comply with the required 1 in 12 minimum pitch.

This issue is also a repeat from the original complaint submission.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 6: Roof is flat and puddles adjacent to house. Slope not to plan.

Investigator’s Observation: The WSLC states that minor ponding up to 1/2-inch in small areas equivalent to no more than 1/3 the roof span are acceptable providing the roof is dry within 48-hours after rain stops. The minor ponding observed in Complainants photos did not appear to exceed the standards. Respondent would be addressing this problem partially due to either correcting the roof leaks and or if the roofing is to be replaced with rolled roofing the Respondent would be required to increase the roof pitch.

Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

5. After being informed by Complainant that no corrective work had been conducted, the Registrar then issued a Citation to Respondent, dated May 30, 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).

6. The Registrar issued a Notice of Hearing, setting a hearing for August 7, 2018, at 1:00 P.M. At the August 7, 2018, hearing, Complainant Anthony Cavalier testified on his own behalf. Respondent presented the testimony of Kim Barnes, President of Respondent. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 26 (excluding exhibit number 20 withdrawn by Complainant) and Respondent’s exhibit numbers 1 - 7. The Tribunal allowed the record to remain open until August 13, 2018, to allow the parties to submit additional evidence that the parties had referred to during the course of the hearing concerning Respondent’s disposing of construction rubble on city property.

7. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directives issued by the Registrar as a result of his observations from his inspections. He testified further that none of the Directive items had been addressed by Respondent. With respect to the roofing material used by Respondent, he stated that it is the Registrar’s position, at least with respect to meeting minimum workmanship standards, that a contractor can substitute equal or better quality materials on a project.

8. Complainant Anthony Cavalier testified as the various items in the Directives that had yet to be completed and provided photographs depicting the alleged deficiencies. (Complainant’s Exhibit 4). He testified that no corrective action had been undertaken, including with respect to Complaint item no. 8 relating to Respondent’s disposing of construction rubble on city property. He stated that although Respondent cleaned up some of the rubble, some of it still remained. (Complainant Exhibit 24).

9. Mr. Cavalier further testified that he had not wanted Respondent back on the job until he was told how Respondent was going to complete the job and told who in particular was going to do the work. He stated that Respondent never confirmed with him that the corrective work was going to be done according to plans. He further admitted that he would not allow Ms. Barnes to “repair ‘her way.’” (Complainant Exhibit 1).

10. Kim Barnes testified on behalf of Respondent that she acknowledged that none of the corrective items had not been completed with the exception of Complaint item no. 8 relating to the construction rubble. She testified that Complainant had given Respondent permission as to the location to dispose the rubble but that in any event, after Complainant had reported the rubble on city property to the Bullhead City Police Department, Respondent had removed the rubble. (Respondent’s Exhibit 7).

11. She stated that Complainant had not provided her with an opportunity to do the corrective work. The evidence she presented regarding Respondent’s attempts to perform corrective work involved text, email, and letter exchanges between the parties. (Respondent’s Exhibit 3). Since the first Directive was issued, the evidence reflects that Respondent sent Complainant texts on March 22, 27, 30, April 2 (2), 3, 13, 16 (2), May 7 and 10, 2018, in which Respondent requested access or proposed dates to perform the corrective work. Complainant did not provide any dates by text and only alluded to “after we agree to corrective work” in a text, dated April 4, 2018. (Respondent’s Exhibit 3).

12. In an email exchange between the parties, Complainant, by email dated April 4, 2018, requested that Respondent address in writing how the corrective work would be performed. Respondent responded by email attaching a letter, dated April 5, 2018, outlining the specific corrective work that Respondent would be performing. Complainant then by email, dated April 16, 2018, outlined how he instead wanted the corrective work to be performed. Respondent responded by email, dated April 16, 2016, again attaching its April 5, 2018, letter outlining its proposed corrective work and asked to do the repairs that week. Complainant responded later that day by email and stated that Respondent was offering “incomplete and mickey mouse repairs.” By certified letter, dated April 18, 2018, Respondent again requested access to the property for repairs. By emails, dated May 7 and 10, 2018, Respondent again requested access to the property. Complainant responded by email dated May 10, 2018, that he required a written detailed report on what Respondent planned to do. Respondent responded by email, dated May 10, 2018, and explained that it had already provided what Respondent planned to do and again requested access. Respondent again requested access by email dated May 17, 2018. (Respondent’s Exhibit 3). There was no evidence presented of any dates proposed by Complainant in response.

13. Respondent’s subcontractor, Azteca Concrete Works, Inc., also sent a certified letter to Respondent, dated May 16, 2018, outlining its earlier attempts to reach Complainant and also requested access to do block and concrete corrective work. (Respondent’s Exhibit 4). Complainant presented no evidence of a response.

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 acts:

...

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. 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 potentially in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of the Directive items with the exception of Complaint item no. 8 regarding disposing of construction rubble. With respect to Complaint item no. 8, while the parties agreed that Respondent removed at least some of the rubble from the city property, there was insufficient evidence presented for the Tribunal to find that the remaining rubble, if any, had been placed there by Respondent. Therefore, the Tribunal finds that Respondent did not violate A.R.S. § 32-1154(A)(3) with respect to Complaint item no. 8.

7. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under 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 corrective work. The Tribunal finds that Complainant did not provide Respondent access to his property for corrective work to be performed despite repeated requests by Respondent.

8. Complainant did not necessarily dispute that he would not allow Respondent access to his property. Rather, he stated he would only allow access to the property if Respondent agreed to perform corrective work that was agreeable to him. Respondent proposed corrective work which Complainant would not accept and therefore Complainant did not allow access despite Respondent’s repeated attempts to gain access. While Complainant may have had a particular idea for the corrective action he desired, he was not permitted to dictate how and what corrective work was to be performed. A contractor may perform corrective work as it deems fit, and would face whatever consequences there may be from the Registrar if such corrective work did not meet minimum workmanship standards. Further, Complainant may not prevent proposed corrective work by determining unilaterally that Respondent’s corrective work would not meet minimum workmanship standards before the corrective work had even begun.

9. Complainant may very well have a case for legal damages against Respondent for Respondent’s alleged failure to meet the terms of the contract between the parties and for performing work that did not meet the expectations of Complainant or the specifications in the contract. However, due to Complainant’s failure to afford Respondent a reasonable opportunity to undertake corrective action, such failure does justify imposing disciplinary action.

10. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) 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, that the Citation and Complaint in this case shall be dismissed.

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 4, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors