ALJDEC decisions subject to certification as final
2019A-03180-CHC-ROC · Registrar of Contractors · 2020-01-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Martha E Kohr,
COMPLAINANT
v.
Mayer & Sons LLC,
License No. ROC 285811,
RESPONDENT
No. 2019A-03180-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: January 3, 2020
APPEARANCES: Martha E. Kohr on her own behalf; Jeremiah Gentry for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On December 2, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 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 Mayer & Sons LLC on October 25, 2019.
Respondent holds license No. 285811 issued by ROC.
Complainant Martha E. Kohr hired Respondent to install a double door at her house.
Ms. Kohr filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.
ROC investigator Wes Ellington conducted a jobsite inspection on August 13, 2019.
On August 27, 2019, ROC issued to Respondent a directive providing in pertinent part:
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 7: Doors are very uneven, do not meet properly.
Investigator’s Observation: The doors have gaps, are not even when closed, and need adjustment.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
Complaint Item 9: Jeremiah cracked the header trying to man-handle the door into place. He did not replace the header as requested. He tried to hide the crack with caulk.
Investigator’s Observation: The header jamb has a large crack that was filled. The Respondent stated he cracked it during installation while driving a screw through it.
Governing Rule: Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
Complaint Item 10: Jeremiah did not even try to match the stucco or drywall. Looks horrible.
Investigator’s Observation: The drywall texture around the door does not appear to be finished. It cannot be determined if it is incomplete, or just a subpar texturing job. The stucco has cracks, and is built up above (sticks out further) the normal flow of the wall. Even after paint, the stucco will not match and is not up to minimum workmanship standards.
Governing Rule: Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
Complaint Item 11: He actually stuccoed the doors framework.
Investigator’s Observation: The door unit is made for a 2X4 framed wall, and the wall is a framed 2X6. The door frame would normally be trimmed out to be flush with the stucco, then trimmed with door casing just as the other exterior doors of this house are.
Governing Rule: Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
Complaint Item 12: Did not remove glued on stickers as promised.
Investigator’s Observation: This is a very minor issue that would normally be done during clean up. The Respondent stated that it would have been done if he had actually finished the job.
Governing Rule: Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
Complaint Item 13: Did not insert the concealing plugs over the screws.
Investigator’s Observation: The small plastic plugs that cover the window frame part of the door unit were not installed. The respondent again stated that this would have been done if he had actually finished the job.
Governing Rule: Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
• Respondent shall correct by the appropriate means.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: Jeremiah Gentry told me that he is the contractor. He is not, it is his father in laws license.
Investigator’s Observation: I explained that Robert Mayer is the qualifying Party for Mayer and Sons. Mr. Gentry stated that they are in the process with the ROC of completing the ownership change. The ROC database does not yet show the ownership change, However, Robert Mayer is listed as qualifying party, and Jerimiah Gentry is listed on the Mayer and Son’s LLC.
Governing Rule: N/A: No violation committed.
• No action required.
Complaint Item 2: Jeremiah Gentry brought his high school son along as the worker. Not the drywall stucco repair person as promised.
Investigator’s Observation: We discussed the fact that the ROC has no jurisdiction on what workers are on site. The complainant stated she was concerned about her liability if he was injured on her property. I also told the complainant that in the future, she can refuse to let anyone she wishes on her property if she is uncomfortable with it.
Governing Rule: N/A: No violation committed.
• No action required.
Complaint Item 3: Jeremiah did not install the door according to manufacturer’s directions.
Investigator’s Observation: The complainant stated she purchased the door from Home Depot and the Respondent agreed to install it. However, the purchased door jamb width is designed for 2”X 4” construction. The Complainant has 2”X 6” construction which would require modification. The Respondent said he agreed to install the door accordingly. I have looked through Masonite’s installation instructions and do not see an issue with the attempted installation (not complete according to Respondent).
Governing Rule: N/A: Unable to verify, door appears to be installed per Masonite installation instructions.
• No action required.
Complaint Item 4: Instead of framing the door, Jeremiah used Locite tite foam for big gaps, to do the job of framing.
Investigator’s Observation: The Respondent stated that he had secured the door using long screws through the hinge plates on the jamb side (He pointed out the different screw heads which are the longer ones). The foam sprayed in was to add protection between the shims and screws. He also stated that he was not finished and had planned on adding additional screws to secure the door unit. The spray foam insulation is not a common practice, but would certainly provide an extra barrier and would be considered a better seal as long as the door was properly secured with screws or nails. I looked at the Complainant’s pictures of the job prior to the trim being installed and could see the foam, and can see shims in the proper position. The door is secured properly, and the long screws are more secure than most doors installed with staples.
Governing Rule: N/A: No violation committed.
• No action required.
Complaint Item 5: Jeremiah did not plum the opening.
Investigator’s Observation: Since the door is installed, the rough opening could not be examined. The door unit appeared to be secured properly.
Governing Rule: N/A: Unable to verify, cannot examine rough opening.
• No action required.
Complaint Item 6: Jeremiah said installation would be 3-4 hours. Same trip helper would stucco and drywall.
Investigator’s Observation: While the contract must have an approximate completion date, there are no governing rules that dictate the amount of time the job takes to complete. No timeline appears in the bid sheet (no real contract exists).
Governing Rule: N/A: No violation committed.
• No action required.
The directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. September 16, 2019.
Respondent made repairs and Mr. Ellington conducted a compliance job site inspection. The date of that inspection is uncertain because Mr. Ellington’s notes are dated October 16, 2019, but show that the inspection took place on October 18, 2019.
Mr. Ellington’s findings were:
Complaint item 7 not corrected and fails to meet the directive given.
In fact, the door alignment is worse than at the initial inspection. The door is still misaligned at the top, and the bottom has a larger (approximately 1⁄2”) gap that light can be seen through. The hole for the bolt latch in the threshold has been enlarged too much and now allows the stationary
door to be loose and not tight against the weather stripping. Light can now be seen through the bottom gap of the door. The stationary door will no longer open without prying the seal up for clearance.
Complaint item 9 not corrected and fails to meet the directive given.
This crack in the header jamb appears to be worse than at the initial inspection. No action was taken to correct the issue.
Complaint item 10 not corrected and fails to meet the directive given.
While the drywall repair meets the very minimum standards, the stucco repair does not. The texture does not match the existing stucco and will still be obvious once painted.
All other directives were repaired to minimum workmanship standards.
At the hearing, Mr. Ellington testified to the effect that the doors were not damaged and could be realigned, that he was not sure how the bolt-latch hole that is too large could be fixed, and that the crack in the header and the stucco were both aesthetic issues.
ROC issued to Respondent a citation dated October 25, 2019 through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent and Ms. Kohr discussed settlement with Respondent offering to refund Ms. Kohr’s payment of $500 and to purchase for her a new door. Ms. Kohr did not accept that offer because she did not believe it was sufficient to fully effectuate the repairs that are required.
Through the testimony of Respondent’s owner Jeremiah Gentry and Respondent’s answer, Respondent provided that it accepts responsibility for any required repairs, but it does not believe it can satisfy Ms. Kohr. Respondent’s offer of settlement still stands and alternatively Respondent is willing to pay a contractor of Ms. Kohr’s choosing the make any required repairs.
Ms. Kohr restated her position that the refund would not be sufficient to effect all required repairs, and she testified to the effect that she would allow Respondent to send another contractor to make the required repairs, but she was not willing to try to hire another contractor herself.
Respondent’s qualifying party Robert Mayer testified that after ROC issued the directive, he had conducted work on the door and had made sure that it was properly hung before he left. Mr. Mayer did not have any photographs or other objective evidence to verify that this was the case.
At Ms. Kohr’s request, Masonite, the door manufacturer had sent an independent party to inspect the door between the time Mr. Mayer completed his work and the date of the compliance jobsite inspection, but there is insufficient evidence to show that that third party misaligned the door.
Mr. Mayer testified to the effect that Respondent has been in business for 38 years and that this is the third complaint against it.
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:
*****
3. Violation of any rule adopted by the registrar.
*****
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 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.
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 Respondent’s work failed to meet the workmanship standards in that the doors were not properly hung, Respondent cracked the header, the stucco did not match the existing work, and the door frame was not trimmed out flush with the wall. Consequently, Respondent has violated Ariz. Admin. Code section R49108(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
The preponderance of the evidence shows that Respondent did not comply with ROC’s directive in the time allotted without a justification for that failure, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Because Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22) ROC has authority to discipline its license.
Considering the facts and circumstances of this matter, particularly Respondent’s willingness to refund Ms. Kohr’s money and pay another contractor to perform any required work, a suspension of Respondent’s license for one day and the assessment of a $250 civil penalty is appropriate.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Mayer & Sons LLC’s license number 285811 for one day;
IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess a civil penalty in the amount of $250 against Respondent Mayer & Sons LLC’s license number 285811.
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.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, January 9, 2020.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000