ALJDEC decisions subject to certification as final

2019A-00773-CHC-ROC · Registrar of Contractors · 2019-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2019 APPEARANCES: Dean Kern, Complainant; Kathryn Vaughn, Respondent; Paul Smith, ROC Investigator ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT On May 16, 2019, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing at 8:30 a.m. on July 11, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. [1] The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint. Respondent, Job 1 LLC, is the holder of License No. ROC 318679 issued by the Arizona Registrar of Contractors (Registrar) (hereinafter, “Job 1”). No contract was offered into evidence and it appears that there was no written contract. Testimony at the hearing showed that the scope of work was to be based on an estimate prepared by Job 1 to build a brick wall fencing on the residential property of Complainant Dean P. Kern. Testimony at the hearing from Mr. Kern showed Job 1 accepted work on the project to provide labor only. Mr. Kern said the footers for the fence had already been dug and poured when Job 1 accepted payment from Mr. Kern to perform its services. It is agreed by the parties that the previous contractor constructed the footers improperly and that Job 1’s scope of work included repairing the work that the previous contractor had done.[2]

Testimony from Mr. Kern showed Job 1 commenced work on or about November 11, 2018 when Job 1 appeared to view the site and Mr. Kern paid Job 1 $400.00 to rent a “fast Cat” to remove the footers that were previously installed. On November 26, 2018, Job 1 was paid $1,500.00 by Mr. Kern for additional materials and labor. Concrete pour was then done by Job 1 on the newly re-dug footers on November 29, 2018. On or about December 18, 2018, workers for Job 1 started laying cinder block on the property’s East side. On December 21, Job 1 workers on site complained to Mr. Kern that they were not getting paid and would not continue work until payment was made. Work stopped on December 21, 2018. On December 25, 2018, Steve Ryan, Job 1’s qualifying party, texted Mr. Kern to advise that there was no money left to pay Job 1’s workers. Mr. Ryan indicated in his texts that the reason he was not on the job site was that his wife had left him and that he checked himself into an inpatient facility for substance abuse.[3] In Mr. Kern’s January 10, 2019 text to Steve Ryan, Mr. Kern stated: I don’t want you working on anything of mine anymore. You are a liability and I can’t afford the risk. It is my belief that you intentionally screwed up the wall and the footer in an effort to milk me for more money….pick up your tools and your trailer and be gone, I am done with you.[4]

On or about February 15, 2019, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work and had abandoned the project. The Registrar assigned the complaint to Investigator Paul Smith. On or about March 22, 2019, following a March 20, 2019 Jobsite Inspection, Investigator Smith issued a written directive to Respondent that provided as follows: ·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-l 154(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. You must provide the Registrar satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 12, 2019. [emphasis in original]. You

Complaint Item 1: The quality of the east fence is very poor and the footer between the pillars of the RV gate has a variance of inches from one side to the other.

Complaint Item 2: footer of the west fence is also incorrect, requiring extensive backfill to bring to proper level and cutting blocks in half lengthwise in order to fit.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, at hearing both Complainant and Respondent confirmed that Job 1 did not correct the items contained in the Directive. The Registrar issued a Citation against Respondent on May 15, 2019, charging possible violations of A.R.S. § 32-1154(A)(3) - R4-9-108 [Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108 below workmanship standard work] and A.R.S. § 32-1154(A)(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] A hearing was held on July 11, 2019 Investigator Smith testified consistent with his Job Site Inspection Notes[5] that at the Job Site Inspection conducted March 20, 2019, no one from the Respondent appeared. Reviewing the Complaint document and discussions with Mr. Kern lead to Mr. Smith’s inspection wherein he found: Complaint Item 1: the quality of the east fence is very poor and the footer between the pillars of the RV gate has a variance of 8 inches from one side to the other. Investigator’s Observation: I observed an 8” approximate variance between the RV gate pillars. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: footer of the west fence is also incorrect, requiring extensive backfill to bring to proper level and cutting blocks in half lengthwise in order to fit. Investigator’s Observation: I observed the footing on the east end of the west wall with block cut in half to level the offset footer. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Kathryn Vaughn testified for Job 1. She agreed on the record that the work done was not up to industry standard, but asserts Mr. Kern threw Job 1 off of the job before the Complaint was filed and had no access to complete the repairs ordered by the Directive. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 30, 2019. Such prior License record reflects that Respondent’s License No. 318679 has been suspended since April 28, 2019 for lack of bond. CONCLUSIONS OF LAW Complainant Kern bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is: The 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 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.

Black’s Law Dictionary 1373 (10th ed. 2014). The preponderance of the evidence shows that for the items in the ROC’s Directive, Job 1’s work was not done in professional manner, which is a violation of Ariz. Admin Code section R4-9-108 and A. R. S.§ 32-1154(A)(3). The preponderance of the evidence shows that Job 1 did not comply with the ROC’s Directive. Although Job 1 takes the position that its failure to comply was justified by Kern’s January 10, 2019 text to Steve Ryan expressly firing Job 1 in writing. As such, Job 1 did present, by a preponderance of the evidence, that it did have a valid justification for its failure to comply by the Directive’s deadline and therefore did not violate A. R. S.§ 32-1154(A)(22). Considering Mr. Kern ordered Job 1 off the job before it was able to complete or correct its work, it is not appropriate to issue an Order requiring Job 1’s license be suspended or revoked. RECOMMENDED ORDER IT IS RECOMMENDED that that the Citation in Case No. 2019A-00773-CHC- ROC be dismissed. FURTHER IT IS RECOMMENDED that this matter be remanded to the Registrar with recommendation that this case be closed. 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 is forty days after the date of that certification. Done this day, July 30, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. [2] “No Arizona authority [directly] addresses the Registrar’s policy that a subsequent contractor who accepts a surface prepared by an earlier contractor also accepts full responsibility for the outcome. [Howevver,] [t]he policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” 73 A.L.R.3d 1213 (1976). A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). The principle is based on common sense and a need for fair dealings between contractors and property owners: For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. .Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted).” Source: Deeb v. Checks Epoxy, No. 2014-3258 (ALJ Decision at 11:20–30). [3]Exhbit C-4, page 14 and 15. [4] Exhibit C-4, page 16. [5] Agency Record, page 6.

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