ALJDEC decisions subject to certification as final

2019A-00090-CHC-ROC · Registrar of Contractors · 2019-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13, 2013 APPEARANCES: Theresa Petersen (“Complaint”) appeared on her own behalf. Aubrey McKown appeared on behalf of Summit Homes (“Respondent”) ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“ROC”). FINDINGS OF FACT Background and Procedure 1. On May 10, 1989, the ROC issued License No. 082898 for B General Residential Contractor to Respondent.[1] Respondent’s address of record for the license is 504 Bridgeway Circle, Prescott, AZ 86301- 6771.[2] Aubrey Hiram McKwon is listed on the license as Qualifying Party and Partner.[3] 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 082898, as reflected on the ROC’s public website on June 13, 2019. Such prior License record reflects that Respondent’s license is currently active.[4] The license has not been previously disciplined by the ROC.[5] The record also reflects that there is one open complaint against Respondent’s license, presumed to be related to this matter.[6] Respondent has an active $150,000.00 surety bond issued through State Farm Fire and Casualty effective March 24, 1997.[7] 3. On December 1, 2016, Complainant entered into a contract agreement whereby Respondent agreed to construct a new single family residence on Complainant’s residential property located at 2790 Inca Drive, Lake Havasu, AZ 86406 for the sum total of $337,000.00.[8] The project commenced on February 4, 2017. No project completion date was identified. 4. On January 3, 2019, the ROC received a Complaint against Respondent from Complainant alleging poor workmanship for incomplete work.[9] ROC Investigator Cliff Corlett (“Investigator Corlett”) was subsequently assigned to the case. 5. The complaint indicated a number of items that were not completed by Respondent, including but not limited to, missing irrigation wiring, cracks and separation between drywall and windows, and peeling, unfinished, and inconsistent paint. 6. On or about January 22, 2019, Investigator Corlett inspected the work that had been done on the project to date, with Complainant and Respondent. 7. On or about February 4, 2019, Investigator Corlett issued a Directive from the Registrar to Respondent because he substantiated Complainant’s allegation that Respondent’s work failed to meet minimum ROC workmanship standards.[10] The directive to Respondent provided the following: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on February 25, 2019. You are hereby directed to remedy the following violations by the appropriate means: Respondent should comply with agreement and install irrigation control wiring as specified. Respondent should properly repair all seam cracks, re-texture and repaint matching surrounding areas as closely as possible. Response should correct by appropriate methods matching the surrounding areas as closely as possible. Response should correct, repaint affected areas matching surrounding areas as closely as possible.

8. Following the issuance of the written Directive, violations were not resolved. 9. On April 10, 2019, the ROC issued a Citation against Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108, and 32-1154(A)(22).[11] 10. Respondent filed its Written Answer to Citation with the ROC on April 12, 2019. 11. On April 26, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on June 13, 2019.[12] Hearing Evidence 12. The parties acknowledged that there were violations that needed to be addressed prior to the Directive deadline.[13] Investigator Corlett testified that all items were accomplished except for the paint repair. Investigator Corlett additionally stated that there was no arrangement established to get the painting done and thus, a Citation was issued by ROC. 13. Complainant testified on her own behalf. Complainant stated that between the dates of February 4, 2019 and February 25, 2019, she was available only on the weekends because she lived in California and did not have enough days to take off from work to come during the week. Complainant indicated that a neighbor did allow another subcontractor in Complainant’s house on one occasion, during the week. 14. Complainant testified that she emailed with Respondent, on February 10, 2019, to set up days to address the Directive from ROC. Complainant reiterated that she could only meet on the weekend but did provide one weekday of Monday, February 18, 2019. Complainant discussed her exhibits which evidenced communication regarding addressing issues other than the painter. 15. Aubrey McKown, testified on behalf of the Respondent. Mr. McKown testified he was denied access to Complainants house to finish the paint repair and comply with the Directive. Mr. McKown stated that the painter did not work on the weekends. Mr. McKown stated that he requested a weekday date from Complainant, for three days in a row, so that the work could be adequately completed. Mr. McKown stated that he was not allowed access into Complainant’s house during the week because Complainant was not physically on the property. Mr. McKown stated that he was unable to comply with the directive because the painter was not available the same time Complainant was available. Respondent testified that Investigator Corlett informed him that Respondent had to be granted reasonable access to the house. Mr. McKown indicated that he was not allowed any access to the house during the week. CONCLUSIONS OF LAW 1. This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108.[14] 4. The evidence established that Respondent attempted to complete the corrective work following the Directive being issued but failed to correct the paint issues. However, Respondent established by a preponderance of the evidence that Complainant denied it access to the property sufficient to allow respondent to complete the required repairs. Of the 22 days from the issuance of the Directive the deadline there, Complainant provided only 4 days, all weekend days but one, during which the work could be done. Such a limitation consitutites a denial of access. Therefore, because the ROC does not expect nor demand perfection from the licensees. Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108 unless it is given the opportunity to correct said issue.[15] RECOMMENDED ORDER It is recommended that on the effective date of the ROC’s final order in this matter, ROC close Complainant Theresa Petersen’s complaint in Case No. 2019-00090 against Respondent Summit Homes’ License No. 082898. 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 40 days from the date of that certification. Done this day, July 3, 2019. /s/ Antara Nath Rivera Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACZLbEAP. [2] Id. [3] Id. [4] Id. [5] Id. [6] Id. [7] Id. [8] See Hearing File, pages 75-76. [9] Id. [10] See Hearing File, pages 36-38. [11] See Hearing File, page 7. [12] See Hearing File, pages 1-2. [13] A.R.S. § 32-1154(A)(22) includes, among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following: 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. 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. Emphasis added. [14] 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.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [15] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against 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.”

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