ALJDEC decisions subject to certification as final

2019A-02109-CHC-ROC · Registrar of Contractors · 2019-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2019 APPEARANCES: Complainant David Zimmerman appeared and was represented by Nathan Anderson. Steven James Goettl, Owner and Qualifying Party, appeared on behalf of Respondent The Goettl Company LLC was represented by David Williams. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Goettl Company LLC (Respondent) is the holder of License No. 301046 issued by the Arizona Registrar of Contractors (Registrar). On or about February 3, 2017, David Zimmerman (Complainant) entered into a contract with Respondent for the construction of a new home in Flagstaff, Arizona. The total contract amount was $1,075,000.00. The contract provided the project would be substantially completed no later than February 28, 2018. The contract did not include Respondent’s license number and did not have an advisement that the homeowner had the right to file a complaint with the Registrar. Respondent’s contract and change orders did not have its license number preceded by the acronym “ROC”. During the first half of 2017, the project was proceeding as expected. During the second half of 2017, work slowed down. At the end of 2017 or early 2018, the cedar siding was installed. Early in 2018, Mr. Goettl notified Complainant that there were issues with the siding that needed to be addressed. Throughout 2018, months would go by with little to no work being done on the project. Given the lack of progress, Complainant met with Mr. Goettl in November 2018 to come up with a plan for completing the home. At that meeting, Mr. Goettl promised Complainant that the home would be finished by the end of the year. Sometime in winter 2018, drywall stains were discovered in the home. Ultimately these stains were determined to be the result of an I-beam that was not level and allowed water to run downward into the home. Respondent was aware of the issue with the I-beam around the time it was discovered. When sufficient progress was not demonstrated and work seemed to halt again, Complainant filed a complaint regarding the project with the Registrar. On or about April 24, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment, poor work, and breach of contract with respect to the project. The Registrar assigned the complaint to Investigator Steve Philpott. On or about May 13, 2019, Investigator Philpott conducted a jobsite inspection. Following the inspection, Investigator Philpott 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 June 14, 2019.

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

Complaint Item 1-5: The Goettl Company has abandoned our house with no substantial progress completed in the last eight months. We broke ground in March of 2017 and the contract has called for substantial completion by February 2018. The Goettl Company has failed to pay supervisors and sub-contractors resulting in poor workmanship. Including but not limited to:

Investigator’s Observation: This complaint item is partly substantiated. The allegation of non-payment to sub-contractors and supervisors is not something that I could inspect and report on at this jobsite inspection. It is not uncommon for unforeseen conditions to occur in the construction industry, however the time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract. Respondent shall complete project per local building codes and manufacturer’s installation instructions

Complainant Item 6-7: A) Wood siding was not properly stained, sealed on all sides and improper nails were used to hang the siding on to the frame

Investigator’s Observation: This complaint item is substantiated. P7. Photo of areas where the siding is cupping (This condition is present as various areas of the exterior). P22. An example of where the siding is separating at the tongue and groove and has excessive cupping. P23. This area is the exterior wall left of the front door. The siding has excessive cupping and separation from the resulting poor workmanship. The installation of the siding has failed at various areas on the home. The home has a cedar tongue and grove siding. Areas were identified on both the front of the home and the rear of the home where the siding has excessive cupping and separation at the tongue and grove sectioning of the siding. Respondent shall determine the cause of the failure and correct by appropriate means in accordance with local building codes, and manufacturers installation instructions.

Complainant Item 8-9: B) There is leaking from the roof in rear of the house in master bedroom near the windows

Investigator’s Observation: This complaint is substantiated. P18. Photo of watermarks from apparent leak at the window in master bedroom P20. Photo showing where drywall damage has occurred where the porch I- beam connects to the outside wall P21. View of the I-beam that is sloping to the house. Respondent shall identify the source of the leak and correct by appropriate means.

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

All errors in original.

On or about May 24, 2019, Complainant submitted an addendum to the complaint. During the June 12, 2019 jobsite inspection regarding the addendum items, Complainant decided to withdraw the additional complaint items to expedite the process to resolve the initial complaint. Following the issuance of the May 22, 2019 written directive, Respondent began working on ways to address the siding and I-beam issues, but was unable to correct either issue. After the deadline in the directive expired, Investigator Philpott was notified the corrective work had not been completed. 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- 1124(B); and A.R.S. § 32-1154(A)(22). On July 3, 2019, Complainant terminated Respondent from the project based on its failure to complete the project in a timely fashion. Investigator Philpott testified that delaying in the construction industry are common, but a project taking more than a year longer than the estimated date of completion was not acceptable under the Registrar’s standards. Complainant testified that the home he was having built was in a private golf club and that Respondent was on the list of approved builders. Complainant stated that as of the date of the hearing, a Certificate of Occupancy had not yet been issued. Complainant acknowledged that there were snow storms in December 2018, but asserted that interior work could have been completed during that time. Jeanne Zimmerman testified that during the November 2018 meeting, the parties reviewed a spreadsheet showing Respondent had been paid 98 percent of the project. Ms. Zimmerman acknowledged that initially they were going to finance the project out of savings, but decided in mid to late 2018 to refinance their home in Phoenix to fund the project. Ms. Zimmerman stated the refinance led to a delay in making payments of approximately 60 days. Mr. Goettl indicated that Respondent had updated its form contract to address the alleged violations regarding the elements of a contract. Mr. Goettl testified as to numerous issues that caused delays on the project including design issues, survey issues, and weather. Mr. Goettl asserted that he felt bad the project had gotten to this point. Mr. Goettl maintained that the siding was not urgent because Respondent was working on critical things inside the house. Mr. Goettl testified that Respondent was unable to get the replacement siding on site by the deadline in the written directive. Mr. Goettl admitted that the I-beam issue was a “critical item”, but indicated he “just couldn’t get it done” despite having known about it since the winter of 2018. Mr. Goettl argued that because Respondent was attempting to comply with the written directive, it could not be said that Respondent abandoned the project. Mr. Goettl also argued that because Complainant terminated the contract in July 2019, Respondent had a legal justification for failing to complete the project. Administrative notice is taken of Respondent’s prior License record on November 18, 2019. Such prior License record reflects that Respondent’s License No. 301046 was first issued on September 18, 2015, and is current. Such prior License record also reflects that there were no other open complaints, five complaints resulting in discipline, and five complaints that were resolved or settled 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 contract failed to include the required elements of a contract set forth in A.R.S. § 32- 1158(A)[1] and the required acronym “ROC” preceding the license number as required by A.R.S. § 32-1124(B).[2] Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).[3] Respondent’s form contract submitted at the hearing corrected these issues. 4. The evidence established that Respondent went months at a time without performing significant work on the project. Pursuant to the terms of the contract, the project was estimated to take 13 months. The fact that Respondent attempted to comply with the directive after it was issued does not negate the failure to perform work on the project prior to the complaint being filed. Complainant terminated the contract 29 months after the parties entered into the contract and the home was still not in a livable condition. Therefore, Complainant established that Respondent abandoned the contract without legal excuse for the abandonment in violation of A.R.S. § 32-1154(A)(1).[4] 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.[5] 6. The evidence established that Respondent did not 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).[6] 7. In light of Respondent’s egregious conduct in delaying this project by almost a year and a half despite having been paid 98 percent of the contract price taken together with Respondent’s history of discipline and complaints, the mere civil penalty and less than five day suspension proposed by Respondent is not appropriate. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 301046. 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, November 18, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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. . . . 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. [2] A.R.S. § 32-1124(B) provides, in pertinent part, as follows: The license number appearing on any licenses held by the licensee must be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. [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)(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.” [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.” 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.” [6] 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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