FINACT2019A-00508-ROC.pdf

2019A-00508-CHC-ROC · Registrar of Contractors · 2019-09-05



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New ALJ Decision transmitted for ROC (2019A-00508-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Tue, Aug 13, 2019 at 2:43 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-00508-CHC-ROC Filed by: OAH Filed on: 8/13/2019 Due Date for Final Agency Action (if applicable): 9/17/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-00508-CHC-ROC-ALJDecision-6424.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 8.13.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lynn Steven Gibbs and Tinina Gibbs,1 No. 2019A-00508-CHC-ROC

COMPLAINANTS, ADMINISTRATIVE LAW JUDGE DECISION v.

Reynolds Flooring Inc., License Nos. ROC 177498 and ROC 177497, RESPONDENT.

HEARING: July 30, 2019, at 1:00 p.m. APPEARANCES: Lynn Steven Gibbs and Tinina Gibbs (“Complainants”) appeared on their own behalf; Reynolds Flooring Inc. (“Respondent”) appeared through Brawner Willard Reynolds, its qualifying party/officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

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

website, on or about August 14, 2002, the Registrar issued License No. ROC 177497

for General Commercial B-2 General Small Commercial Contracting to Respondent.

On or about August 15, 2002, the Registrar issued License No. ROC 177498 for

General Residential B General Residential Contracting.

2. On or about January 31, 2019, Complainants filed a complaint with the

Registrar against Respondent that alleged that it had performed poor work on twenty

enumerated items in its construction of a new home located at 792 E. 1250 South in

Tinina Gibbs is Lynn Steven Gibbs’ wife and co-owner of the house at issue. The Administrative Law Judge amended the caption at Mr. Gibbs’ request to allow his wife to represent the marital community interest. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 8.13.2019 ROC LEGAL

Pima, Arizona 85542, which Complainants subsequently purchased for the full contract price of $270,000.00. 3. The Registrar assigned the complaint to its Investigator, Michael Springer, for

investigation. Investigator Springer performed a jobsite inspection on March 5, 2019.

On March 6, 2019, Investigator Springer on behalf of the Registrar issued a directive to

Respondent, requiring it to correct by appropriate means certain items on

Complainants’ complaint on or before March 22, 2019, at 5:00 p.m., in relevant part as

follows:

1. Complaint Item 1: Sinking foundation in garage. Builder said he would chip out and repour. Garage, builder now wants to grind down driveway instead of correct garage. Several cracks around foundation, worried more sinking than just garage. 2. Complaint Item 2: Developer notified that drainage water runs towards house instead of away from. Front yard flooded, water ran under drive gates and back yard flooding as well. Builder has not corrected drainage and does not have means or funds to correct. 3. Complaint Item 3: Leaks around windows and windows do not seal, again questioning sinking? 4. Complaint Item 4: Two exterior doors have become very difficult to open due to sinking. AII doors and windows are continuing to shift. What closed before now won't. 5. Complaint Item 5: Exterior cracks around garage and all windows, some windows leak water in. 6. Complaint Item 6: Exterior door from garage never finished, sealed or painted. 7. Complaint Item 7: Several cracks in most rooms of interior and more developing. 8. Complaint Item 8: Cracks in grout around showers and tubs, pulling away and worried leaks. 9. Complaint Item 9: Cracks and pop in front tub, he wants [to] seal instead of replace. 10. Complaint Item 10: Hole in door to garage patched instead of replaced with proper fire door. 11. Complaint Item 11: Has not returned to place access door for jetted tub or tile, open 3+ months. 12. Complaint Item 12: Possible water leak in living room ceiling and no one has come to inspect. RECEIVED 8.13.2019 ROC LEGAL

13. Complaint Item 13: No drainage between house and sidewalk, water pools near house, sidewalk crack. 14. Complaint Item 14: House appears to be setting in low spot, all water in cul-de-sac runs to house.

4. Investigator Springer later extended the deadline on the directive to April 4, 2019, with Complainants’ permission. 5. After the extended deadline had passed, Complainants informed Investigator Springer that Respondent had not corrected all the items on the directive. Investigator Springer referred the complaint to the Registrar’s Legal Department. 6. On April 11, 2019, the Registrar issued a Citation against Respondent’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). 7. Respondent’s qualifying party/officer, Brawner Reynolds, filed a timely written answer to the Citation on its behalf, denying any statutory violations. Mr. Brawner stated that Mr. Gibbs had told him and his workers that the repairs were complete. 8. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On May 15, 2019, the Registrar issued a Notice of Hearing, setting a hearing on July 3, 2019. 9. On May 15, 2019, Complainants requested that the hearing be continued because they would be in Coeur d’Alene, Idaho on July 3, 2019, and would not return until July 12, 2019. The assigned Administrative Law Judge issued an order continuing the hearing until July 30, 2019. 10. A videoconference hearing was held from the Registrar’s Tucson office on July 30, 2019. Complainants testified on their own behalf. Mr. Reynolds testified on behalf of Respondent. Investigator Springer also testified. HEARING EVIDENCE 11. Investigator Springer testified that he performed a prehearing jobsite inspection on July 1, 2019. Investigator Springer testified that Respondent had performed work on all the items in Complainants’ complaint but that, in his opinion,

RECEIVED 8.13.2019 ROC LEGAL

Respondent’s corrections to Item Nos. 3, 4, 6, 8, 9, and 12 on the directive still did not comply with the Registrar’s or professional industry standards. 12. Investigator Springer testified that, with respect to Item No. 12 on the

directive, the possible water leak in the living room ceiling, the drywall was discolored.

Although it was possible that the leak had been repaired, the drywall had not been

repaired.

13. Investigator Springer testified that with respect to Item No. 1 on the

directive, the garage and driveway had been at different levels, but he did not know

which one was sinking. Investigator Spring testified that Respondent had re-poured the

driveway to be at the same level of the garage which, in Investigator Springer’s opinion,

was an appropriate repair.

14. Investigator Springer testified that Respondent had done work to improve

the drainage system around the house (directive Item Nos. 2 and 14). Investigator

Springer explained that most codes require grading on the 10’ next to the structure to

allow water to drain away from the structure. Investigator Springer acknowledged that

there had not been much rain before the hearing to test the Respondent’s re-grading

but testified that that the re-grading that Respondent had done appeared to bring the home site up to code. 15. Complainants testified that new crack were opening up in the slab around the garage (directive Item No. 5) and on the back patio. Investigator Spring testified that the cracks that he saw were still within the Registrar’s standards for concrete because the cracks were 1/8” or less wide and showed no displacement. 16. With respect to directive Item No. 9 (cracks and pops in front tub), Investigator Springer testified that he believes that Respondent replaced the tub because it looked like it had been damaged during the installation process. Because the tub was damaged, it still was not up to applicable standards. 17. Investigator Springer stated that work had been done on the two exterior doors and the exterior door from the garage (directive Item Nos. 4 and 6), but that the doors still did not meet the Registrar’s or professional industry standards. RECEIVED 8.13.2019 ROC LEGAL

18. Investigator Springer acknowledged that because the windows on most houses are not airtight, they will let in some dust. Investigator Springer testified that the directive required Respondent to correct the leaking windows (directive Item No. 3)

because the windows had an excessive pile of sand inside them at the jobsite

inspection, not just a little bit of dust. Investigator Springer acknowledged that he relied

on Complainants’ word that Respondent had not corrected the leaking windows. Mr.

Reynolds did not testify to the contrary.

19. Investigator Springer acknowledged that the house had passed the

county’s inspection. He explained that passing inspection was not determinative

because the county’s inspector is mostly looking for code compliance, not at

workmanship to see that applicable standards are met.

20. Pursuant to A.A.C. R4-9-117, administrative notice is taken of

Respondent’s prior disciplinary history at the Registrar’s public website on this date.

Both of Respondent’s licenses are current and in good standing with no prior discipline

showing on either license. Complainants’ complaint appears to be the only one

pending against License No. ROC 177498.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.2 2. Complainants bear the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence.3 Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty 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 Vazanno 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 8.13.2019 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. Because Respondent only used residential License No. ROC 177498 to build

the house that Complainants later complained about, its commercial License No. ROC

177497 should not be suspended or revoked as a direct result of Complainants’

complaint.

5. Construction is not a perfect art and, normally, contractors must be allowed

an opportunity to correct poor workmanship before their licenses may be suspended or

revoked as a result of their failure to comply with workmanship standards.

6. Although Respondent has improved the condition of some of the items on the

directive, Complainants established that Respondent’s work on directive Item Nos. 3, 4,

6, 8, 9, and 12 did not comply with the Registrar’s or professional industry standards

and that Respondent failed to fully correct these items by appropriate means to comply

with the March 6, 2019 directive. Therefore, Complainants established cause to

suspend or revoke Respondent’s residential contractor’s license under A.R.S. § 32-

1154(A)(3),7 namely A.A.C. R4-9-108,8 and A.R.S. § 32-1154(A)(22).9 RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that on the effective date of the final order in this matter, License No. ROC 177498 of Respondent Reynolds Flooring Inc. shall be suspended for a period of three (3) business days. IT IS FURTHER ORDERED that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

6 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). 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.” 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)(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.” RECEIVED 8.13.2019 ROC LEGAL

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 final order, the Registrar shall revoke Respondent’s residential license, effective on such deadline

date. At that time, Respondent’s commercial License No. ROC 177497 may be

revoked under A.R.S. § 32-1154(A)(20) and 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 any outstanding prior civil penalty.

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, August 13, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors