ALJDEC decisions subject to certification as final
2019A-02772-CHC-ROC · Registrar of Contractors · 2020-08-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Douglas G Smith,
COMPLAINANT
v.
Colemax LLC,
License No. ROC 222183,
RESPONDENT
No. 2019A-02772-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: August 3, 2020
APPEARANCES: Douglas G. Smith on his own behalf; Frank Schweiger for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On July 1, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on August 3, 2020 at the Office of Administrative Hearing.
The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Colemax LLC on May 22, 2020.
Respondent holds license number 222183 issued by ROC. Frank Schweiger is one of Colemax’s members.
Complainant Douglas G Smith hired Colemax to build a garage on East Paradise View Drive in Paradise Valley.
On May 29, 2019, ROC received from Mr. Smith a complaint against Colemax alleging poor work on Colemax’s part as to the roof. Among the issues Mr. Smith raised was that the roof had leaked and was not properly installed.
Colemax filed an answer acknowledging that the roof had leaked, but asserting that the deficiency had been corrected at its expense. Colemax also asserted that Mr. Smith had filed the complaint because he did not want to pay his final bill.
Colemax’s answer did not specify the amount it believed was due, but at the hearing, Mr. Schweiger testified that Mr. Smith owed $34,253.25 due in December 2018 plus interest. Mr. Schweiger’s estimate was that the cost for the roof itself was about $15,000.
Mr. Smith’s complaint shows that the contract was for $152,996, and he had paid a total of $136,941, a difference of $16,055.
ROC assigned Investigator Steve Klein to Mr. Smith’s complaint.
On July 9, 2019, Mr. Klein conducted a jobsite inspection. At that time, Mr. Smith agreed to have the complaint closed to allow Colemax an opportunity to fix any alleged deficiencies.
On August 15, 2019, ROC informed the parties that it was closing Mr. Smith’s complaint.
Through an email dated January 12, 2020, Mr. Smith requested that ROC reopen the complaint asserting that Colemax and its subcontractors had devoted very little time to fixing the deficiencies. Mr. Smith included a fourteen point list of “areas that need attention.”
On March 4, 2020, Mr. Smith filed a request to add to his complaint an allegation that a concrete drainage gutter across the driveway did not meet the plans.
On March 13, 2020, Mr. Smith sent to ROC pictures of water damage inside the garage.
On April 10, 2020, Mr. Klein conducted a jobsite inspection to consider the issues raised in Mr. Smith’s request to reopen and his March 4th allegation regarding the drainage gutter.
On April 10, 2020, ROC issued to Colemax a Directive that provides in part:
.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 30, 2020.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: The roof was done improperly which resulted in leaks into the garage
• Seams should be installed per manufacturers installation instructions.
Complaint Item 4: Face is not wrapped under the soffit completely
• Plans call for soffit to match existing which wrap under the soffit.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, and manufacturers installation instructions.
Complaint Item 5: There are lose panels in the fascia
• Verified panels throughout fascia / parapet are not secure.
• Violation of Any Rule Adopted By the Registrar 32-1154 A-3 Namely Rule R4-9-108.
Complaint Item 6: A corner is not complete
• Verified bare wood at front corner parapet.
Complaint Item7: Parapet is missing underlayment in areas and bare wood is visible in areas
• Verified bare wood under parapet cap.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 8: Underlayment does not meet specs
• Verified bare wood in several areas.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 9: Closure is missing
• Complainant points out ridge weather block is not per manufacturers installation specifications.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 10: Gutter trough is not the same material as roof body
• Verified roof panel not properly flashed at gutter.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 11: North and south side flashing is not to code and does not match roof material
• Verified flashing not secured well, wavy and scratching roof panel.
Complaint Item 12: Coping material is incomplete
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 14: Gutter is not properly installed
• Same as Complainant #10
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Governing Rule: Violation of Any Rule Adopted By the Registrar 32-1154 A-3 Namely Rule R4-9-108.
Complaint Item 15: Missing sealant in areas
Investigator’s Observation: Complainant points out where panels extend over gutters and dead valleys.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 17: Cricket improperly installed.
Investigator’s Observation: Same as Complaint #11
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
Complaint Item 18: Addendum to the above complaint the fact that the drainage gutter across the driveway was never finished according to the original documents with a dirt bottom being left when the plans called for finished concrete and the ceiling is now showing damage in numerous locations from past rain. It is very likely mold and or other damage not visible prior to the most recent leak is present.
Investigator’s Observation:
• Verified drywall damage in garage due to roof leak
• Verified driveway drain wasn’t installed per plan.
• Respondent shall complete project per plans, specifications and manufacturers installation instructions.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 2: Ceiling uneven
• Ceiling was repaired by another contractor.
• N/A The Respondent’s work was subject to modification.
Complaint Item 3: Electrical fixtures not to fit flush
• Work was repaired by another contractor.
• N/A The Respondent’s work was subject to modification.
Complaint Item 13: Majority of panels are scratched and some are of different color
• I’m unable to verify Respondent caused damage.
Complaint Item 16: Rust on copper
• Existing material, unable to verify Respondent caused damage.
Respondent’s subcontractor Rimmer Roofing LLC began to make repairs to the roof. ROC’s administrative record includes an email from Mr. Rimmer providing his opinion that Mr. Smith’s consultant was overriding the agreement between Rimmer, Respondent and Mr. Smith regarding the work that was required to be completed.
Although Rimmer did not complete the work ROC ordered Coleman to complete by the deadline, it continued to conduct work after that date. Mr. Rimmer’s emails show that there was some delay occasioned by the slowdown in production of material resulting from COVID-19.
On May 21, 2020. Mr. Klein conducted a compliance jobsite inspection, at which time he determined that Colemax had repaired items 5, 6, 8 and 14, but no other items had been corrected.
On May 26, 2020, ROC issued to Respondent a Citation through which it alleged that Colemax may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
At the hearing, Mr. Schweiger testified as to his position that Mr. Smith owes Colemax $34,253.25 that was due in December 2018, plus interest, and he expressed his opinion that as a result, Colemax had no incentive to fix any problems.
Mr. Schweiger also testified that the roof had been subject to abuse in that people had been walking on it and pulling back the sheets, which can be seen in the photographs Mr. Smith submitted with his complaint.
Mr. Schweiger testified to the effect that Respondent’s exhibit 3 are the plans that the contractor was to match, but Mr. Smith had changed from a copper roof to less costly material and he approved the material that was used.
Mr. Smith acknowledged that he had not paid Colemax the entire amount of the contract, but was of the opinion that there was not an amount currently owing because the balance will not be due until the project is properly completed.
Respondent’s exhibit 4 is an undated letter from Premier Concrete Works LLC (license numbers 199362 and 227759). That letter shows that: Premier was the subcontractor that did the original concrete work; some time after that work was completed, Colemax put it in touch with Mr. Smith who was not satisfied with the slope called out in the plans; Mr. Smith hired Premier to remove existing concrete including the drainage gutter and re-pour concrete to achieve a flatter slope, but not the gutter because Mr. Smith was going to do that himself to save money; Mr. Smith was forgetful about issues they discussed; Mr. Smith paid Premier for its work; several months later Mr. Schweiger called and said Mr. Smith wanted the gutter poured; and when Premier called Mr. Smith about the issue, Mr. Smith had no recollection of saying he was going to pour the gutter himself.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
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3. Violation of any rule adopted by the registrar.
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22. Failure 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. The written directive must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Colemax violated Ariz. Admin. Code section R4-19-108(A) by failing to perform it work in a professional manner in that there are numerous deficiencies with the roof at Mr. Smith’s house, which is also a violation of section 32-1154(A)(3).
Colemax’s argument that the roofing work has been subject to abuse through people walking on the roof and pulling on panels is not persuasive because the evidence shows that this investigative work was justified because the roof has leaked and because there were other deficiencies that are unrelated to the actions of these others. See Ariz. Rev. Stat. § 32-1155(D)(a citation should not issue when the work has been subject to alteration or abnormal use).
Colemax’s position to the effect that it should not have been required to make repairs because there is a balance owing on the contract is not persuasive because it has not shown that the project was properly completed as required before any final payment was due.
The preponderance of the evidence does not show that Colemax was responsible for any incomplete work related to the drainage gutter across the driveway, and to the contrary, the evidence shows that Mr. Smith paid Premier Concrete to remove the gutter at issue. See Ariz. Rev. Stat. § 32-1155(D).
The preponderance of the evidence shows that Colemax violated Ariz. Rev. Stat. section 32-1154(A)(22) because it did not complete the work that ROC ordered it to complete within the time ROC allowed.
Because Colemax has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.
Considering the facts and circumstances of this matter, particularly that Mr. Smith originally agreed to close his complaint to allow Colemax to make repairs that were never completed, Colemax’s license should be suspended for three days and a civil penalty of $250.00 should be assessed against it.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Colemax LLC’s license number 222183 be suspended for three days;
IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against Colemax LLC a civil penalty of $250.00.
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 is forty days after the date of that certification.
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-137160-45720000Done this day, August 20, 2020.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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