FINACT2019A-01558-CHC-ROC.pdf

2019A-01558-CHC-ROC · Registrar of Contractors · 2019-12-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Brian Paul Emory, Case No. 2019-01558 COMPLAINANT, Docket No. 2019A-01558-CHC-ROC v. FINAL ADMINISTRATIVE DECISION AND Masonry and More LLC ORDER License No. ROC 199192, 246231, 254436, 309000, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 11, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 FINAL NOTES On page 1, line 14 beginning with “On” through line 16 “(Respondent)” should be stricken and replaced with “The Registrar of Contractors (ROC) issued License Nos. 199192 (CR-31 Masonry), 254436 (CR-9 Concrete), 246231 (CR-31 Masonry), and 309000 (CR-36 Plaster) to Masonry and More LLC (Respondent). The ROC issued License No. 199192 on August 9, 2004. The ROC issued License No. 254436 on April 9, 2009. The ROC issued License No. 246231 on June 4, 2008. The ROC issued License No 309000 on October 18, 2016.” On page 1, line 26 replace “August 9, 2019” with “March 15, 2019”. On page 2, line 12 replace “May 6, 2019” with “April 18, 2019”. On page 3, line 19 add “-32-1154(A)(22)”. On page 7, line 26 replace “license” with “License Nos. 199192, 254436, 246231, and 309000.” On page 7, line 29 replace “(A)(5)” with “(A)(7)”.

Dated December 2, 2019. By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 2, 2019 to: Respondent Masonry and More LLC 3619 Jamaica Blvd S Lake Havasu City, AZ 86406 Respondent’s Attorney T'Shura-Ann Elias Esq 3640 Highway 95 Ste 140 Bullhead City, AZ 86442 Complainant Brian Paul Emory 1214 W Bloomwood Rd Rancho Palos Verdes, CA 90275

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy sent electronically this same date to:

Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Case No. 2019-01558/tw

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 11.20.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Paul Emory, No. 2019A-01558-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Masonry and More LLC, ROC License: ROC 199192, 254436, 246231,309000 RESPONDENT

HEARING: October 11, 2019 and October 31, 2019 APPEARANCES: Jami Goldman, attorney appeared on behalf of Brian Paul Emory (Complainant). T'shura-Ann Elias, attorney, appeared on behalf of Masonry and More LLC (Respondent). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. On September 4, 2009, the Registrar of Contractors (ROC) issued License Nos. 199192, 254436, 246231, 30900 for Specialty Dual CR-9 Concrete to Masonry and More LLC (Respondent). Respondent’s address of record for the license is 3619 Jamaica Blvd S, Lake Havasu City, AZ 86406-4137. Jeffrey Adam Gilbert is listed on the license as Qualifying Party and Member.1 2. Administrative notice is taken of Respondent’s prior License record, for License Nos. 199192, 254436, 246231, 30900, as reflected on the ROC’s public website on October 31, 2019. Such prior License record reflects that Respondent’s license numbers, except for 246321, are currently active. 2 The licenses has never been disciplined by the ROC. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through R L I Insurance Company effective August 9, 2019.3

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACZAlEAP, https://roc.az.gov/contractor- search?Id=a0Yt000000ACU8TEAX, and https://roc.az.gov/contractor-search?Id=a0Yt000000ACXNYEA5. For unspecified reasons, ROC license no. 246231 is expired. See https://roc.az.gov/contractor- search?Id=a0Yt000000ACVrcEAH Id.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.20.2019 ROC LEGAL

3. On or about April 9, 2018, Brian Paul Emory (Complainant) contracted with Respondent to build a free standing wall on Complainant’s property located at 2280 Smoketree Avenue N, Lake Havasu City, AZ 86403. The project commenced on or about May 15, 2018 and ended on or about March 7, 2019. Complainant paid Respondent a total of $11,570.00. 4. On or about March 29, 2019, the ROC received a poor workmanship complaint from Complainant. The ROC received estimates, invoices, text messages, emails, and photographs from Respondent and Complainant. 5. On or about April 2, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, provided proper notice to them, and advised that an onsite review would be conducted at the project site by an ROC investigator on April 18, 2019, at 9:00 a.m. 6. On or about May 6, 2019, ROC investigator Cliff Corlett (Investigator Corlett) conducted a jobsite inspection regarding the complaint filed by Complainant. During the inspection, Investigator Corlett reviewed the work completed by Respondent, to date, and took about 13 photographs. Respondent was present during the inspection. 7. On or about April 30, 2019, Investigator Corlett issued a Directive From The Registrar (Directive) to Respondent because he substantiated Complainant’s allegation that Respondent exhibited poor workmanship on work that was not completed per industry standards. Specifically, the Directive 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- 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 or before .

You are hereby directed to remedy the following violations by appropriate means: Complaint Item 4: Wall must be in uniform color. ….. RECEIVED 11.20.2019 ROC LEGAL

Complaint Item 5: Wall must be void of cracks and lines. ….. Complaint Item 7: There must not be overspray on to landscape and walkways and walls.

All errors in original. 8. On or about May 16, 2019, Complainant requested a second jobsite inspection after Respondent failed to comply with the Directive and caused more damage as a result of trying to correct some issues. 9. On or about May 21, 2019, Investigator Corlett notified Complainant and Respondent that a compliance jobsite inspection would be conducted on June 10, 2019, at 9:00 a.m. For unknown reasons, the inspection actually occurred on June 3, 2019, at 9:00 a.m. Respondent was not present for the compliance jobsite inspection. Following that inspection, Investigator Corlett found that Respondent corrected all matters, on the Directive, except for the correction of the dark grey overspray onto the white wall. Additionally, Investigator Corlett determined that there was damage to the stucco caused by an air hose and spilled paint on the concrete on the patio. 10. On or about June 25, 2019, Investigator Corlett sent the parties a complainant jobsite inspection letter which documented his observations. 11. On June 28, 2019, the ROC issued a Citation to Respondent for alleged violations of ARIZ. REV. STAT. §§ 32-1154(A)(3). Respondent was given until July 15, 2019, to respond with its Answer or face discipline pursuant to ARIZ. REV. STAT. §§ 32- 1154(A)(22). 12. On or about July 12, 2019, Respondent filed an Answer to the Citation and Complaint with the ROC. Respondent indicated that it was unaware the violations were still outstanding until it received the June 25, 2019, letter from the ROC. Respondent indicated that three days was not enough time to correct the remaining items. Respondent also indicated that it had problems accessing Complainant’s property due to issues with Complainant’s tenants and neighbors, and Complainant himself. 13. On July 26, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on RECEIVED 11.20.2019 ROC LEGAL

September 5, 2019. On that day, the parties met to discuss the case and mutually decide to continue the case until October 11, 2019. On October 11, 2019, the case was heard and furthered until October 31, 2019. HEARING EVIDENCE 14. At hearing, Investigator Corlett testified to his observations of the investigation. Investigator Corlett stated that the Directive did not have a compliance deadline date because of technical issues on ROC’s website. The compliance deadline was May 20, 2019, and all parties were made aware of that date. 15. After the June 3, 2019, compliance jobsite inspection, Investigator Corlett determined that Respondent was noncompliant with the Directive with respect to the overspray issue. Investigator Corlett also determined that Respondent damaged the stucco and spilled paint on the concrete patio while performing corrective work. 16. At hearing, Complainant testified that he hired Respondent to build a free standing wall. Complainant requested Respondent to change the color of the wall from purple to dark grey. Respondent agreed to change the paint color but did not use the right paint color and did not blend the colors well. 17. Additionally, even though Respondent fixed the cracks it was not properly done and was done with a different color paint. Complainant introduced photos which illustrated the overspray of paint on the rocks and wall, the black paint that was spilled on the concrete patio, and the parts of damaged stucco. 18. Furthermore, Complainant and Jeff Gilbert, owner of Respondent, had miscommunication issues on many occasions. The issues focused on scheduling around Complainant’s availability and his tenant’s availability. Respondent came on May 13, 2019 and May 14, 2019, to fix the wall. Respondent did not correct the overspray, cracks, and paint color. Respondent also damaged the stucco and spilled paint on the patio during that time. Complainant took pictures after Respondent’s employee’s employee left. Complainant was never asked to do a walk through with Respondent or any of its employees to approve the corrective work. 19. On or about May 15, 2019, Complainant emailed Investigator Corlett to complain about Respondent’s poor workmanship following the corrective work,

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including the items that were not on the Directive. Complainant requested a second jobsite inspection and requested further action be taken against Respondent. 20. At hearing, Respondent introduced testimony of Michael Hinojosa, an employee of Respondent. Mr. Hinojosa completed the corrective work at Complainant’s house in May. Specifically, Mr. Hinojosa acknowledged that he painted the bottom wall the wrong color and had to repaint it. He performed corrective work on three cracks and one stepdown crack. Mr. Hinojosa admitted that there was overspray on the wall, plants, and rocks. Mr. Hinojosa took care of the overspray by moving rocks around and washing that area. Mr. Hinojosa used a paint hose to spray the wall. The paint hose was wrapped over the top of the wall. Mr. Hinojosa did a walk through with Complainant. Complainant did not address any overspray issues. 21. At hearing, Mr. Gilbert testified that he built a staggered wall for Complainant’s home before Complainant bought the house. Complainant’s builder referred Mr. Gilbert to Complainant when Complainant wanted to build a free standing wall. The wall was completed in July 2018. In October 2018, Complainant contacted Respondent about cracks in the wall and the color of the wall. Respondent repainted the wall, at no charge. Respondent also fixed the cracks. Complainant was not satisfied with the work and filed a Complaint with the ROC. 22. Respondent performed all of the corrective work pursuant to the Directive. Mr. Gilbert sent Mr. Hinojosa to perform the corrective work. Mr. Gilbert acknowledged that there was overspray on the back walls and landscape. No damages were found during the walk through with Complainant. Moreover, Complainant did not mention any issues. Respondent did not damage the stucco or spill paint. Additionally, those items were not on the original Complaint. CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq.

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2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action. 4 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. 5 4. 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). 5. 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.” 6. 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.” 7. A.R.S. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

4 See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz.

437, 441, 803 P.2d 430, 434 (App. 1990). See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

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8. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. While the overspray issue was the only item not corrected per the Directive, there were additional items that were damaged during the performance of the corrective work. Complainant established, by a preponderance of the evidence, that Respondent damaged the stucco and spilled paint while performing corrective work. Thus, Complainant established that Respondent did not use appropriate means to complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108. 9. Furthermore, the Registrar issued its Directive to Respondent on April 30, 2019, and required Respondent’s full compliance by May 20, 2019. Respondent failed to comply when Respondent did not correct the overspray and caused additional damage during performance of the corrective work. There are sufficient facts in the record to conclude that Respondent also violated ARIZ. REV. STAT. § 32-1154(A)(22), by a preponderance of the evidence. 10. Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 199192, 254436, 246231, 30900 for a period of one (1) day. IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 any outstanding prior civil penalty.

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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, November 19, 2019. /s/ Antara Nath Rivera Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors