ALJDEC decisions subject to certification as final

2019A-04895-CHC-ROC · Registrar of Contractors · 2020-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joel and Debbie English,

COMPLAINANT

Creative Concepts Woodworking and Remodeling Inc.,

License No. ROC 256431,

RESPONDENT

No. 2019A-04895-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 27, 2020

APPEARANCES: Complainants Joel and Debbie English appeared on their own behalf. Matthew Bayles, Owner and Qualifying Party, appeared on behalf of Respondent Creative Concepts Woodworking and Remodeling Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Creative Concepts Woodworking and Remodeling Inc. (Respondent) is the holder of License No. 256431 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 24, 2019, Joel and Debbie English (Complainants) entered into a contract with Respondent for a remodeling project. The original contract price was $98,700.00. At the time of the contract, Respondent’s license limited it to jobs totaling less than $50,000.00.

On or about September 27, 2020, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 24, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Complaint Item 16: Excess spray foam at various locations

Investigator’s Observation: Corrected by Complainant prior to initial inspection with the exception of the interior garage man door. Work is not complete.

. . . .

Complaint Item 25: Concrete for toilet in master bath an open hole

Investigator’s Observation: Work is not complete.

. . . .

Complaint Item 45: Rough plumbing. All rough plumbing needs to be completed.

Investigator’s Observation: Work is not complete. Complete requirements of local building official relative to rough plumbing.

. . . .

Complaint Item 47: Shower. Tile on the shower floor needs to be completed.

Investigator’s Observation: Work is not complete.

On or about February 14, 2020, Investigator Melton issued an amended written directive which highlighted that Respondent could not perform or hire other contractors to perform work that was outside the scope of its license and added the following item to be corrected:

Complaint Item 37: Front gable. In addition to the other items already listed and inspected at this location and upon comparison with the construction plans, the posts installed are not the correct size and so the anchors supporting them are incorrect. The gable was not built per the design in the plans.

Investigator’s Observation: Gable has been modified (exterior paint & caulking) by other than Respondent. Gable posts/anchors are not per plan.

The new deadline for completion of the corrective work was February 24, 2020. Because Respondent was not authorized to perform a job of this magnitude under its license, the only option available to address the items in the written directive was a financial settlement with Complainants.

Following the issuance of the written directives, the parties were unable to reach a financial settlement. After the deadline in the amended directive expired, Investigator Melton was notified the matter had not been resolved.

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).

Investigator Melton testified that denial of access was not an issue in matters where a financial settlement was the only method to resolve the complaint. Investigator Melton stated that the Registrar considers painting over rough carpentry to be a modification of the work, so she could not substantiate a workmanship issue. Investigator Melton also noted that a lack of payment was not an excuse for a failure to comply with a written directive from the Registrar.

Mr. English testified that the only discussion he had regarding financial settlement with Respondent was its offer to accept fifty cents on the dollar that Respondent believed it was still owed under the contract. Mr. English argued no written change orders were executed with respect to the gable.

Mr. Bayles testified that Ms. English verbally approved a change order regarding the gable and the gable was built in accordance with that change order. Mr. Bayles acknowledged that a written change order was not executed regarding the gable. In addressing the other items in the written directives, Mr. Bayles stated that Item 16 was not completed due to non-payment; Item 25 was not completed due to non-payment; Item 45 was not poor work, but was work that was not completed; and Item 47 was not poor work, but was work that was not completed due to non-payment. Mr. Bayles stated that Respondent attempted to get the work done after the first written directive, but it needed five days to perform the work and Complainants only allowed access on two days. Mr. Bayles testified that the license issue was an oversight on Respondent’s part, but once it got a warning letter from the Registrar, it rectified the situation.

Administrative notice is taken of Respondent’s prior License record on June 8, 2020. Such prior License record reflects that Respondent’s License No. 256431 was first issued on June 25, 2009, and is active. Such prior License record also reflects that there were no other open or 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 did not construct the gable according to the project plans and did not obtain a signed change order to deviate from the project plans. Therefore, Complainant established that Respondent departed from the project plans in violation of A.R.S. § 32-1154(A)(2).

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.

The evidence established that Respondent did not complete the corrective work, via a financial settlement, 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).

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. 256431 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)(7), 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.

-54864001

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-137160-45720000Done this day, June 10, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000