FINACT2019A-00054-ROC.pdf

2019A-00054-CHC-ROC · Registrar of Contractors · 2019-08-16



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New ALJ Decision transmitted for ROC (2019A-00054-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Mon, Aug 5, 2019 at 12:56 PM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-00054-CHC-ROC Filed by: OAH Filed on: 8/5/2019 Due Date for Final Agency Action (if applicable): 9/9/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-00054-CHC-ROC-ALJDecision- 6405.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/.

https://mail.google.com/mail/b/AH1rexQmmAHLmbWh4AkjCyKI23BY9poKNoym78m2W43fucMTvOO1/u/0?ik=5d3b7d39d0&view=pt&search=all&per… 1/1 Received 8/05/2019 ROC Legal IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Brander Lee, No. 2019A-00054-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE R F Builders LLC, DECISION ROC License: ROC 224677 RESPONDENT

HEARING: July 9, 2019, 1:00 P.M. APPEARANCES: Paul Levine, Esq., appeared on behalf of Complainant; Benjamin Kuipers, Esq., appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. R F Builders LLC (Respondent), is the holder of License Number 224677

issued by the Registrar of Contractors (Registrar).

2. On or about January 2, 2019, Patricia Brander Lee (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with construction of a residence by Respondent for Complainant in Fountain Hills, Arizona. 3. After an inspection performed by the Registrar on March 8, 2019, the Registrar issued a Directive, dated March 12, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 1, 2019, as follows: Driveway retaining walls Complaint Item 2: Stucco: right side wrapping around garage: approximate 30 cracks

Cracks 1/8th or more should be filled.

Complaint Item 3: Stucco: left side approximately 22 cracks

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received 8/05/2019 ROC Legal Cracks 1/8th or more should be filled. Front of house- stucco Complaint Item 4: Right side of office balcony (front) and around corner Cracks if excessive (spider cracking), Stucco falling, chipping, or cracks that exceed 1/16th of an inch should be corrected. Complaint Item 5: Above garage entry door Cracks if excessive (spider cracking) , Stucco falling , chipping, or

cracks that exceed 1/16th of an inch should be corrected.

Complaint Item 6: Below study bath (front) left of metal parapet

Cracks if excessive (spider cracking) , Stucco falling , chipping, or cracks that exceed 1/16th of an inch should be corrected. Complaint Item 7: Front of house- garage entry door (not square) Cracks if excessive (spider cracking) , Stucco falling , chipping, or cracks that exceed 1/16th of an inch should be corrected. Complaint Item 8: Front stairs: tile repairs not holding up and discoloring Any crack that can be felt with a fingernail except natural veining should be corrected.

Complaint Item 9: Front patio: cracks in tile near last repair

Any crack that can be felt with a fingernail except natural veining should be corrected. Outdoor fire pit area Complaint Item 10: Retaining wall (sidewalk) cracks and paint/ plaster chipping off Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 11: Southeast side air conditioner area

Received 8/05/2019 ROC Legal Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 12: Crack above left air condition on short sidewall Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 15: Cracks above bbq area Cracks 1/16th or more should be filled. Stucco falling or chipping

should be corrected. Popping or peeling paint should be corrected.

Complaint Item 16: 2 cracks left side of master shade

Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 17: Left of outdoor shower: parallel with shower floor Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 18: Left of master steam shower window Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected.

Retaining wall outside bedroom 3 and 4

Complaint Item 19: 3 cracks starting at end of steps West wall outside hallway window Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 20: Crack near corner metal parapet West wall bedroom 5 Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 21: Paint scrapes, discoloration on right Received 8/05/2019 ROC Legal Paint color shade appears to be different in several areas Complaint Item 22: Cracks on right side corner Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 23: Cracks above a/c pipes Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected.

Complaint Item 24: Cracks left of scupper

Cracks 1/16th or more should be filled. Stucco falling or chipping

should be corrected. Popping or peeling paint should be corrected. North wall bedroom 5 Complaint Item 25: Discoloration above window Paint color shade appears to be different in several areas Complaint Item 27: Grout loose from all 4 Pella windows on garage Verified loose material around several windows. Roof Complaint Item 30: Roof parapet stucco cracking and falling out/

Verified material between parapet and stucco is loose or falling

out. Complaint Item 35: Crack in stucco near vent fan of study Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 36: Alarm not working on master 2 suite outdoor door from when Pella replaced Alarm should function as intended

Received 8/05/2019 ROC Legal Complaint Item 38: Abandonment due to work not being completed based on contract with RF Builders will provide contract and closing statements addendum) Job shall be completed project per original contract agreement and properly executed change orders Complaint Item 38: GFI is not working in an area where we are having major drainage issues (south side air conditioner).

GFCI should function as intended.

Complaint Item 39: In the landscape control box, bare wires are without

wire nuts. (same area) Wires should be connected with the proper fastener 2/12/2019 Received addendum to the complaint Complaint Item 41: We have a major roof leak resulting in ceiling/wall damage and mold to Bedroom 3. Respondent is currently addressing the leak at the time of inspection. Complaint Item 42: Multiple cracking on outside stucco upstairs shower

wall. Many of the stucco exterior walls are displaying similar but not

as severe. Cracks 1/16th or more should be filled. Stucco falling or chipping should be corrected. Popping or peeling paint should be corrected. Complaint Item 43: Roofer pointed out to builder an open hole in stucco above outdoor shower area. It appears caulking was completed; Respondent is currently addressing the leak.

Received 8/05/2019 ROC Legal Complaint Item 44: All windows in stone need to be caulked as grout is falling out. (All garage windows are cited but now all windows encased in stone have issues) Verified loose material around several windows. Complaint Item 45: I cited painting issues on several outside walls but now we are seeing similar issues with most of outside walls particularly the lighter color. Darker color had issues during first

inspection and several of them are now having same issue.

Paint color shade appears to be different in several areas

4. After performing a Compliance Inspection on April 17, 2019, and observing that Respondent had failed to comply with Directive, the Registrar then issued a Citation to Respondent, dated April 24, 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).

5. The Registrar issued a Notice of Hearing, setting a hearing for July 15,

2019, at 1:00 P.M. At the hearing, Complainant Patricia Lee testified on her own behalf. Respondent presented the testimony of Pete Frederick, owner of Respondent. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 20 and 23.1 6. Complainant on June 18, 2019, had filed Complainant’s Motion to Strike Answer on the stated ground that Respondent’s Answer filed on May 9, 2019, did not

The Tribunal also took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings. Received 8/05/2019 ROC Legal comply with A.R.S. § 32-1155(A). The Tribunal heard argument from the parties at the July 15, 2019, hearing and reserved ruling on the matter. The Tribunal now denies the Motion to Strike finding that Respondent’s letter submitted on May 9, 2019, while not strictly in compliance with A.R.S. § 32-1155(A), is a sufficient responsive pleading in combination with Respondent’s earlier March 30, 2019, letter submitted to the Registrar. 7. The Investigator testified on behalf of the Registrar as to his

communications with Complainant and Respondent, his inspection of the job site, and

the Directive issued by the Registrar as a result of his observations from his inspection.

He testified further that he performed a Compliance Inspection on April 17, 2019, and observed no correction of Directive items but did see that some drywall work had been performed presumably in connection with the roof leaks. He stated that Complainant did reject Respondent’s request to perform a water test at the Compliance Inspection. 8. Complainant Patricia Lee testified that none of the Directive items were corrected by Respondent, but that she had repaired cracked tiles (Directive item numbers 8 and 9) and the shower leak (Directive item number 41). She identified each of the Directive items through the photographic exhibits submitted. (Complainant’s

Exhibit No. 15).

9. Ms. Lee further testified that she never at any time denied access to Respondent to do the repairs, but that Respondent did show up on April 3 to plug the shower drain even though Complainant had informed Respondent that no one would be home that day. 10. Pete Frederick testified on behalf of Respondent and did not dispute the existence of the items in the Directive. Rather, he testified that Complainant’s own work contributed to creating the Directive items. He stated that Complainant added roller shades on the back of home on her own which he believed caused junction boxes

Received 8/05/2019 ROC Legal to be inadequately waterproofed. He also stated that Complainant modified a handrail on the back patio on her own which he believed led to wall cracking. 11. Mr. Frederick stated that he had offered to Joe, Complainant’s husband, to repaint the house in a “vague” conversation but that he could not recall when he made that offer. He further stated that he brought a roofer at one point to do roofing repairs and that Complainant rejected his request to do a water test at the Compliance Inspection. Mr. Frederick further testified that he had already replaced 16 broken or

cracked tiles, which he said were cracked by movers. He stated there were 12 more

cracked tiles at the time of inspection, but now there are over 20 new cracked tiles in

the photographs. He stated that the cracking had nothing to do with workmanship and that there had to be blunt force of some kind to crack the tiles. 12. Mr. Frederick further testified that there was an earlier case between the parties for the same project (Case No. 2018A-0984 in which Respondent was disciplined) and that some of the Directive items in the current case were present at the time of the previous case but not raised in that case. (Complainant’s Exhibit No. 10). He argued that Complainant “let it go” in the first case so should not be permitted to raise those items in this case. He further testified that there was a significant

breakdown in communication between the parties.

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.

Received 8/05/2019 ROC Legal 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…. 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 cause to discipline Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. Respondent did not dispute the existence of the Directive items or that the items constituted a failure to meet workmanship standards. However, Received 8/05/2019 ROC Legal Respondent’s arguments to support a finding that its work was performed in a professional and workmanlike manner are unpersuasive. There was no evidence presented, other than Mr. Frederick’s opinion, that Complainant’s addition of roller shades on the back of home or modification of a handrail on the back patio caused any, or for that matter which, Directive items. There was also no evidence presented, other than Mr. Frederick’s opinion, that blunt force caused the cracking of the tiles. Respondent further argued that Complainant should not be able to raise work deficiencies in this case that could have been raised in the earlier case, Case No. 2018A-0984, which involved the same construction project. While Respondent argued the doctrine of res judicata precluded raising these work deficiencies, it provided no legal authority for such nor did it identify for the Tribunal any particular work deficiency in the present case that was actually raised and litigated in the previous case. Also, while the argument presented by Respondent seemed to be more in the nature of a

waiver argument, there was no evidence presented to show that Complainant

knowingly waived her right to raise work deficiencies in this case by not raising them in

the previous case.

Accordingly, the Tribunal finds that Respondent failed to perform the work in a professional and workmanlike manner for each Directive item. 7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(22). While Respondent argued that Complainant refused access to Respondent, there was no evidence presented to show that was in fact the case. Complainant’s refusal to allow a water test at the Compliance Inspection, which she was permitted to do after the expiration of the Directive deadline, does not support a finding of a valid justification for failing to take appropriate corrective action. Similarly, a breakdown in communication does not demonstrate that Respondent sought access to perform corrective repairs and was denied such access by Complainant. Further,

Received 8/05/2019 ROC Legal the Tribunal does not find Respondent’s vague offer at some unspecified time to repaint the residence to constitute an attempt at corrective work. 8. Complainant has 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, R F Builders LLC’s License Number 224677 is suspended for five business days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 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, August 5, 2019. /s/ Roger Geddes Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors