ALJDEC decisions subject to certification as final

2019A-01123-CHC-ROC · Registrar of Contractors · 2020-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ms. Tina’s Independence Preschool LLC,

COMPLAINANT,

Tils Construction Inc.,

License No. ROC 286042, 251318,

RESPONDENT.

No. 2019A-01123-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 28, 2020

APPEARANCES: Jake Gordon and Tina Gordon appeared on behalf of Complainant Ms. Tina’s Independence Preschool LLC. Mark Skousen, Officer and Qualifying Party, appeared on behalf of Respondent Tils Construction Inc.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Tils Construction Inc. (Respondent) is the holder of License No. 286042 and License No. 251318 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about September 5, 2017, Tina Gordon and Jake Gordon, on behalf of Ms. Tina’s Independence Preschool LLC (Complainant), signed a contract with Respondent for the development and construction of the preschool in Queen Creek, Arizona.

3. On or about March 6, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

4. The Registrar assigned the complaint to Investigator Randy Morris. On May 14, 2019, following a jobsite inspection, Investigator Morris issued a written directive to Respondent that provided Respondent was to address seven items.

5. On or about June 20, 2019, Investigator Morris conducted a compliance inspection. During the compliance inspection, Investigator Morris observed that Respondent’s corrective work met the Registrar’s minimum workmanship standards as it related to the seven complaint items in the written directive. Investigator Morris noted that Complainant brought up several more potential issues including a small section of caulking at the left rear side of the kitchen sink and a small section of drywall reinforcing tape that was visible below the shower head when the escutcheon was removed. Respondent agreed to repair both items without a directive.

6. Because all the directive items had been complied with, the Registrar closed the complaint in this matter on June 27, 2019.

7. On or about December 5, 2019, Jake Gordon, on behalf of Complainant, emailed Randy Cason to state that he felt it was necessary to reopen the case against Respondent as it related to the parking lot. Mr. Gordon indicated the parking lot was “definitely getting worse” including water retention and extremely low curbs that allow runoff from their neighbors. Mr. Gordon stated that he had previously addressed the matter via email with Respondent and Investigator Morris on August 29, 2019, but other than a hole being filled, “no other repairs have been attempted to be taken care of.”

8. On or about February 11, 2020, Investigator Stephen Lawton issued a written directive to Respondent that identified the following issues that had to be corrected by March 6, 2020: (page 229)

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 6, 2020.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: Asphalt sinking at septic cleanout.

Investigator’s Observation: It was verified that the area around the septic cleanout is sinking at the cleanout causing a depression and ponding.

. . . .

Complaint Item 2: Parking lot ponds and does not drain.

Investigator’s Observation: It was observed and verified through civil plans that the drainage does not flow to the rear retention area as required by the plans. It was also noted that the curbing is also not per plans which required a 6 inch curb exposed above asphalt allowing drainage from neighboring property to drain onto Complainant[’]s property. It was also noted that the drainage to the rear retention area is running up hill causing ponding in the drive area.

9. On or about March 4, 2020, Respondent contacted Investigator Lawton to request additional time to complete the corrective work. Investigator Lawton contacted Complainant to determine if it would allow Respondent an extension to complete the work, and Complainant denied Respondent an extension.

10. After the deadline in the written directive expired, Complainant informed Investigator Lawton that the required corrective work had not been completed.

11. On or about March 19, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

12. On or about March 25, 2020, Respondent submitted a Written Answer to Citation and Complaint in which Respondent asserted that it asked for additional time to obtain proper engineering and perform the work, but Complainant would not grant the extra time.

13. Investigator Lawton testified as to his involvement in this matter. Investigator Lawton indicated that based on photographs he had received from the parties, it appeared that the project, as it stood at the time of the hearing, had been completed in accordance with the Registrar’s workmanship standards. Investigator Lawton acknowledged that he had not conducted a prehearing inspection and had not seen the work in person prior to the hearing. Investigator Lawton stated that if there were any issues with the artificial turf at the project, that would have to be the subject of a separate complaint.

14. Ms. Gordon asserted that Respondent’s attempts at corrective work on the project resulted in damage to the artificial turf. Ms. Gordon indicated that because the company that installed the artificial turf was not involved in the changes that were made to the turf, Complainant’s 10 year warranty on the artificial turf was voided.

15. Mr. Gordon testified that Complainant was pursuing this action to protect other members of the public from Respondent. Mr. Gordon stated that Respondent did not correct the second complaint item in the second written directive. Mr. Gordon posited that Ms. Skousen just went off on his own to fix the parking lot.

16. Mr. Skousen testified that Respondent performed the corrective work as quickly as possible in light of the need to obtain the engineering report and the impact of COVID-19 on his ability do the work. Mr. Skousen argued that he had offered to address the issues in the parking lot on numerous occasions prior to Complainant filing the complaint, but Mr. Gordon would not accept anything less than a completely new parking lot.

17. Administrative notice is taken of Respondent’s prior License record on August 21, 2020. Such prior License record reflects that Respondent’s License No. 286042 was first issued on July 6, 2013, and was active. Such prior License record also reflects that there were no other open complaints or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’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 with respect to the items in the second written directive. 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.

4. The evidence established that Respondent did not complete the corrective work following the written directive being issued prior to the deadline in the directive. While Respondent eventually complied with some part of the directive prior to the hearing, it was unclear from the record whether both items in the written directive had been completed. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 286042 for a period of one day.

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, August 21, 2020.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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