ALJDEC decisions subject to certification as final

2019A-04760-CHC-ROC · Registrar of Contractors · 2020-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael J. Gandy,

COMPLAINANT

Build Inc.,

License Nos. 210681, 229225,

RESPONDENT

No. 2019A-04760-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 23, 2020

APPEARANCES: Complainant Michael J. Gandy, appeared on his own behalf by telephone, Mark Allen for appeared by Google Meet on behalf of Respondent Build, Inc. which was represented by Andy Everroad, also appearing by Google Meet, Randy Morris, Inspector for the Registrar of Contractors by Google Meet, Hank Rutan, witness for Respondent by telephone.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Build, Inc. (Respondent) is the holder of License Nos. 210681, 229225 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 8, 2013, Michael J. Gandy (Complainant) signed a contract with Respondent for a home remodel.

On or about September 19, 2019, the Registrar received a Complaint containing eight items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Randy Morris. The original inspection was performed on November 13, 2019, and covered all of the complaint items but for Item 3. A water test could not be performed at that time to address Item 3 and Complainant could not provide accurate locations where the water was penetrating the structure. See Jobsite Inspection Notes, page 1.

Once Complainant was able to determine the location of the leaks, a second inspection was scheduled for later in December 2019. Respondent was unable to attend, and the inspection was rescheduled for late January 2020. For this inspection, Complainant was unable to attend, and the inspection was again rescheduled, this time for February 21, 2020.

The Investigator’s observation concluded, after a water test was performed,

that the master bedroom deck leaked with water leaking into the family room/great room ceiling and walls, the family room fireplace was observed to leak from around the flue into the fire box...and water was observed to leak into the family room window...Water leaks into the structure do not meet the minimum workmanship standards. The allegation is verified.

Investigator Morris then issued a written directive on or about February 27, 2020 to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3). 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 March 16, 2020.

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

Complaint Item 3: “WATER LEAK & DAMAGE AT LIVING ROOM FIREPLACE, FAMILY ROOM WINDOW, MASTER BEDROOM DECK”.

Investigator’s Observation: This complaint item was address during the second job site inspection. A water test was performed for each item by the Complainant by spraying water onto the suspect leak areas. During the water test, it was observed that the master bedroom deck leaked with water leaking into the family room/great room ceiling and walls, the family room fireplace was observed to leak from around the flue into the fire box, no water was observed to be leaking from the interior of the flue and water was observed to leak into the family room window (TV area window at NW corner of house). Water leaks into the structure do not meet the minimum workmanship standards. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154(A)(3),namely AAC R4-9-108.

Following the issuance of the written directive, several attempts were made by Respondent to fix the leaks and resultant damage prior to the March 16, 2020 deadline.

After the deadline in the directive expired, Investigator Morris was notified the Directive Order had not been fully complied with, as Complainant was concerned about national crisis issues. See Investigations’ Department Citation Recommendation.

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).

No Compliance Jobsite Inspection was performed.

Complainant testified that he was unaware that he needed to have proof to demonstrate where the leaks were coming from which caused the first delay in determining the items in Complaint #3. Complainant further also testified that the first attempt for repair was a week after the Directive was issued.

Complainant testified that during one of the repairs, Respondent caused additional damage to the window blinds.

Finally, Complainant testified that he did everything to avoid delay in allowing for the repairs.

Mr. Allen testified generally that the delay in the repairs was caused by Complainant and that he would often wait for several days between his request for access to the property and being granted access. See Exhibit 20.

Mr. Allen further testified that the leaks in the living room fireplace were repaired in March, but the other damage surrounding the fireplace was not completed. The family room window leak was fixed in April, but there still was minimal damage to be corrected. Finally, the leaks by the master bedroom were fixed as to the east side only but not the west side.

Mr. Allen testified that he believed the cause for the leak in the master bedroom was the actual architectural design, as the door tracks were integrated into the stucco and into the water proofing membrane. Mr. Allen testified that this was repaired such that the tracks were no longer sitting on the membrane.

Mr. Allen testified that the repair by the master bedroom deck was as difficult as it was because the caulking was only effective on the east side and not the west side due to the small gap which needed repair and the west side not being covered by shade thus causing adhesive issues.

Between February 26, 2020 and June 10, 2020, Mr. Allen testified that he attempted nine times to make full repairs on the property. See Exhibit 20. He did admit that he was never denied access to the property, rather he was just delayed due to Mr. Gandy’s lack of timely response.

Hank Rutan of Sun Valley Sealants, testified on Respondent’s behalf that he installed the deck in March 2016, and he believed that the deck was properly installed.

Mr. Rutan came out to re-seal the deck but failed to inspect the damage to the underlying plywood prior to re-sealing the same which then cause some seams in the deck.

Administrative notice is taken of Respondent’s prior License record on June 24, 2020. Such prior License record reflects that Respondent’s License Nos. 210681, 229225 were first issued on August 12, 2005, and are current. Such prior License record also reflects that there is 1 open complaint, namely the present complaint, and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Water was leaking into the family room/great room ceiling, from the family room fireplace, from the family room window as well as from the master bedroom deck. 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.

The evidence established that although Respondent did attempt to complete the corrective work following the Directive being issued, it failed to fully do so prior to the March 16, 2020 deadline. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 210681, 229225 for a period of two 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.

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-137160-45720000Done this day, July 2, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000