ALJDEC decisions subject to certification as final

2019A-01651-CHC-ROC · Registrar of Contractors · 2019-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 2019 APPEARANCES: Complainant James Irving Kimmel Jr. appeared on his own behalf. Kevin Liszewski, Owner and Qualifying Party, appeared on behalf of Respondent K & A Best Fabrication LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT K & A Best Fabrication LLC (Respondent) is the holder of License No. 294532 issued by the Arizona Registrar of Contractors (Registrar). On or about December 17, 2018, James Irving Kimmel Jr. (Complainant) entered into a verbal contract with Respondent in which Respondent was to erect a steel building ordered by Complainant on a concrete slab already installed on Complainant’s property. The total contract price was $4,500.00. On or about April 3, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Randy Morris. On June 20, 2019, after a jobsite inspection, Investigator Morris 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. § 32-1154(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 July 8, 2019.

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

Complaint Item 1: “Screws drilled into the side panels missed the supporting structure down both sides of the building.” Investigator’s Observation: Verified that screws missed side panel metal structure. Allegation is substantiated. 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: “Roof panels installed on one side are not aligned with other side.” Investigator’s Observation: Verified that roof panels on one side of the roof do not align with the metal panels on the other side of the roof, causing gaps where panels over-lap and/or damage where panels appear to have been forced together. Allegation is substantial. 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 3: “Roof cap cannot be installed correctly due to the misaligned roof panels.” Investigator’s Observation: Verified that the roof cap is missing at approximately 25% of the structure and existing roof cap is damaged where it appears to have been forced to align with the roof panels on each side. Allegation is substantiated. 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 6: “Many un-repaired miss-drilled holes throughout the structure.” Investigator’s Observation: Verified many “holes” throughout the roof and side wall metal panels of the structure. Allegation is substantiated. 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 7: “Panels bowed out in placed due to misalignment.” Investigator’s Observation: Verified panels scattered throughout the structure are “bowed” and/or damaged. Allegation is substantiated. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9- 108, Poor work not performed in accordance with professional industry standards.

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, Respondent made no attempt to complete the work identified in the directive. After the deadline in the directive expired, Investigator Morris was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32- 1154(A)(22). Investigator Morris testified as to his involvement in this matter. Complainant testified that of the $4500.00 contract price, he paid Respondent $3500.00. Complainant stated that the project was only partially built and that what had been built was damaged. Complainant testified that he believed he would be able to place the ridgecap himself, but when he got on the roof of the structure, he realized the panels were misaligned and the ridgecap would not line up properly. Complainant stated that if the panels were removed and realigned, the roof would then be full of holes. Complainant denied Respondent’s allegation that the building components, as delivered were incorrect. Complainant stated he reviewed the parts with the blueprints and instructions and was able to identify all the included parts and determined no parts were missing. Mr. Liszewski testified that the x-bracing and walls were missing when the components were delivered. Mr. Liszewski indicated that he told Complainant he wodl come back out to complete the project once all the appropriate parts were on the jobsite. Mr. Liszewski stated that the missing parts delayed the project, but he had no problem going back to the jobsite to correct the issues identified in the directive. Mr. Liszewski admitted that Respondent did not attempt to complete the corrective work after the directive was issued because he had other things going on during the directive timeframe and it just was not going to work for him to be there at that time. Administrative notice is taken of Respondent’s prior License record on October 28, 2019. Such prior License record reflects that Respondent’s License No. 294532 was first issued on September 9, 2014, and is current. Such prior License record also reflects that there were three open complaints and no other 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 failed to complete the project as agreed upon by the parties. Therefore, Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).[1] 4. The evidence established that the cost of the project was more than $1000.00 and the parties did not have a written contract. Because Respondent failed to have a contract including the required elements of a contract set forth in A.R.S. § 32-1158(A),[2] Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).[3] 5. 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.[4] 6. The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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).[5] 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. 294532 for a period of five days. 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. 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, October 28, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1158 provides as follows: A. Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. [3] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f] ailure in any material respect to comply with this chapter.” [4] 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.” [5] 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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