FINACT2019A-01953-CHC-ROC.pdf

2019A-01953-CHC-ROC · Registrar of Contractors · 2019-09-24

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Catherine A. O'Connor and Pamela A. Jenson, Case No. 2019-01953

COMPLAINANT, Docket No. 2019A-01953-CHC-ROC v.

5C Construction LLC, FINAL ADMINISTRATIVE DECISION AND License No. ROC 299943, ORDER 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 November 3, 2019.

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 2 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 NOTE On page 5 line 11 replace “(A)(5)” with “(A)(7)”. Dated September 24, 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 September 24, 2019 to: Respondent 5C Construction LLC PO Box 2446 Sierra Vista, AZ 85636

Respondent’s Attorney Robert D. Stachel Jr., Esq. Stachel & Associates, P.C. 2151 S Highway 92 ste. 100 Sierra Vista, AZ 85635

Complainant Catherine A O'Connor and Pamela A Jenson 515 Tombstone Canyon Bisbee, AZ 85603 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Case No. 2019-01953/tw

of 2 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 9.19.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Catherine A. O'Connor and Pamela A. No. 2019A-01953-CHC-ROC Jenson, COMPLAINANT ADMINISTRATIVE LAW JUDGE v. DECISION 5C Construction LLC, DBA: Conroy Home and Maintenance, ROC License: ROC 299943, RESPONDENT

HEARING: September 6, 2019 APPEARANCES: Complainants Catherine A. O’Connor and Pamela A. Jenson appeared on their own behalf. Respondent 5C Construction LLC doing business as Conroy Home and Maintenance was represented by Bob Satchel. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. 5C Construction LLC doing business as Conroy Home and Maintenance (Respondent) is the holder of License No. 299943 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about November 11, 2017, Catherine A. O’Connor and Pamela A. Jenson (Complainants) entered into a contract with Respondent for the renovation of a home in Bisbee, Arizona. 3. On or about April 16, 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 Mike Springer. After a jobsite inspection, Investigator Springer 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 Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 9.19.2019 ROC LEGAL

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 6-10-19. You are hereby directed to remedy the following violations by the appropriate means: 1. Complaint Item 3: Bedroom #1: Paint repair does not match, drywall shows seams. 2. Complaint Item 4: Bedroom #1: Sheet rock in closet poor quality. 3. Complaint Item 6: Bedroom #2: Closet light removed, not patched/painted. Poor drywall quality. 4. Complaint Item 7: Bedroom #3: Paint repair does not match, dry wall seams show, window trim uneven. 5. Complaint Item 11: Bathrooms: Both pocket doors are scratched, hung poorly, not painted, latches inoperative 6. Complaint Item 12: Master bath has wrong size window installed- smaller than we paid for, trim uneven, drywall poor. (Trim repair only this item) 7. Complaint Item 16: Closets: Charged $200. for lights, no lights in 2 of 3 closets. (Light removed from closet needs to be replaced. Small room with exterior door.) 8. Complaint Item 26: Laundry Room: Drywall poor quality. (Nail pop near water heater) 9. Complaint Item 28: Porch: Recent repair done with cracked boards, they are uneven and not caulked (4th attempt). 10. Complaint Item 35: Kitchen: Kitchen can light fixtures are loose-don’t fit. 11. Complaint Item 36: Kitchen: Poor job on drywall for the entry arch/pass through. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Springer was notified not all of the corrective work had been performed. Investigator Springer conducted a compliance inspection on July 2, 2019. At that time, Investigator Springer found four of the eleven items in the directive had not been repaired to comply with the Registrar’s workmanship standards. RECEIVED 9.19.2019 ROC LEGAL

6. 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).

7. Investigator Springer testified that during the jobsite inspection,

Complainants and John Conroy, Owner and Qualifying Party for Respondent, were

present. Investigator Springer indicated that they parties first agreed on how to

designate the bedrooms and then proceeded to review the complaint items in each

room. Accordingly, the rooms in the written directive, Bedroom #1, Bedroom #2, and

Bedroom #3, should have been known to the parties as they agreed to those labels

during the jobsite inspection. Investigator Springer testified that items 4, 11, 12, and 35

from the written directive had not been corrected to meet the Registrar’s standards.

8. Ms. O’Connor testified that Complainants became dissatisfied with

Respondent’s work as the project proceeded, so they began “taking jobs away from”

Respondent. Ms. O’Connor denied that Complainants ever had another contractor

perform any corrective work on those items Respondent first performed. Ms. O’Connor

acknowledged that Complainants may have expressed they were satisfied with the

corrective work performed by Respondent pursuant to the directive, but that they were not experts as to construction standards and relied on the Registrar to determine if the work was in compliance with the Registrar’s standards. Ms. O’Connor stated that Investigator Springer told Complainants that they were not required to allow Respondent back on the property to complete any corrective work after the deadline in the written directive expired. 9. Mr. Conroy testified that Complainants filed the instant complaint after Respondent sued them for final payment under the contract. Mr. Conroy stated that he had not been allowed back on the property since June 7, 2019. Mr. Conroy specifically stated that the light fixture in the kitchen that was caulked to the ceiling was customary given that the new lights installed had such a long life that by the time the light needs to be replaced, the entire fixture can be replaced. 10. Administrative notice is taken of Respondent’s prior License record on September 18, 2019. Such prior License record reflects that Respondent’s License No. RECEIVED 9.19.2019 ROC LEGAL

299943 was first issued on June 24, 2015, 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. Respondent’s attempts to question Complainants’ motive for filing the

instant complaint are irrelevant to the question of whether at alleged violations occurred. Further, whether Complainants, at some point in the process, stated they were satisfied with the work done does not negate the findings of Investigator Springer or relieve Respondent of the responsibility to do the corrective work properly. 4. 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. R4-9-108.1 5. The evidence established that Respondent did not complete all of the corrective work following the written 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).2 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 RECEIVED 9.19.2019 ROC LEGAL

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. 299943 for a period of

three 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, September 18, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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.”