ALJDEC decisions subject to certification as final

2019A-04950-CHC-ROC · Registrar of Contractors · 2020-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sanford Samuels,

COMPLAINANT

Fred Matthew Widell,

DBA: Lakeside Drywall and Painting,

License No. ROC 266457, 266456,

RESPONDENT

No. 2019A-04950-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2020

APPEARANCES: Complainant Sanford Samuels, appeared on his own behalf via Google Meet. Respondent Fred Matthew Widell appeared via Google Meet on his own behalf. Jason Kitchel appeared as a witness for Respondent via Google Meet. Cliff Corlett, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Fred Matthew Widell (Respondent) is the holder of License Nos. 266457 and 266456 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 10, 2018, Sanford Samuels (Complainant) signed a contract with Respondent for drywall and painting in his residence.

On or about June 29, 2018, the Registrar received a Complaint containing fourteen items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. On October 8, 2019, Investigator Corlett found that Respondent completed all the directed corrective work and Respondent was now in compliance, and that Complaint was closed.

On or about September 30, 2019, Complainant filed the present case alleging that the previously accepted repairs were now not acceptable.

On October 31, 2019, Investigator Corlett issued a Dismissal Letter to Complainant informing him that because the allegations had already been adjudicated, they cannot be the basis of a new complaint.

On November 7, 2019, Complainant sent an e-mail to Investigator Corlett and requested that the case be re-opened as the two of the items occurred because of the repair and the item in the garage was not discovered by a city inspector until September 2019.

After the Complaint was reinstated, a Jobsite Inspection was scheduled for December 9, 2019.

Investigator Corlett then issued a written directive on or about December 18, 2019, 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 January 10, 2020.

. . .

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

Complaint Item 1: Shrunken joint compound on repairs performed for complaint 2018-2995. Dinette area, hall powder room, front bedroom.

Investigator’s Observation: Excessive joint compound used at plugs and drain pipe referred to by Complainant has shrunken and or cracked. Respondent should correct by appropriate methods matching the surrounding areas as closely as possible.

Governing Rule: A.R.S. § 32-1154A.(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

Complaint Item 2: Garage ceiling has incomplete drywall repair at ceiling plug that was caught by city building inspector for penetration in garage ceiling. (correction notice issued)

Investigator’s Observation: A small piece of fire rated drywall was observed to be missing at a ceiling plug in the downstairs garage ceiling exposing wood framing members. Lake Havasu City issued a correction notice to correct before Final Inspection would be issued.

Respondent should properly complete the drywall installation in garage ceiling matching the surrounding areas as closely as possible.

Governing Rule: A.R.S. § 32-1154A.(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

Complaint Item 3: Cornerbead separating on kitchen wing wall. Investigator’s Observation: Respondent installed rounded cornerbead throughout this water damage repair to match existing. The cornerbead on the kitchen wing wall has a separation crack. There did not appear to be any impact damage, misuse or abuse. Respondent should repair the “popped” cornerbead by appropriate methods matching the surrounding areas as closely as possible.

Governing Rule: A.R.S. § 32-1154A.(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Poor work not performed in accordance with professional industry standards.

All errors contain in original.

Following the issuance of the written directive, a Compliance Inspection was scheduled for January 30, 2020, and Investigator Corlett noted that Item 1 was still incomplete, Item 2 could not be 100% verified and Item 3 was completed.

On February 21, 2020, 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).

After Respondent’s failure to file a timely Answer to the Citation, a Default Order was entered on March 18, 2020. However, it was discovered that Respondent had answered the Citation, but sent the same to the incorrect e-mail address. The Registrar then set aside the Default and set a hearing with the Office of Administrative Hearings.

At hearing, Complainant testified that all but one of the defects (telephone outlet in the front bedroom) are now completed. Complainant further testified as to his frustration with the overall quality of work and the workers completing the same. He believed that Respondent was using un-licensed subcontractors to perform the work.

Finally, Complainant testified that he believed the Registrar of Contractors was giving Respondent a “pass”, and that he had been a victim, while Respondent was “having a good time in Mexico.”

Respondent and his witness Mr. Kitchel both testified that they believed that all of the work had been completed satisfactorily. Further, because most of the corrective work was painting, imperfections may not appear until the paint dried. However, they would still ask Complainant if he was satisfied with the work performed. Respondent testified that Complainant stated to him “Oh you’ll be back.”

Finally, Complainant testified that he believed all work was completed in a very workmanlike manner.

Administrative notice is taken of Respondent’s prior License record on September 9, 2020. Such prior License record reflects that Respondent’s License No. 266457 was first issued on July 26, 2010, and is currently active. As to Respondent’s License No. 266456, that License was first issued on July 26, 2010, and is currently active.

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. While Respondent completed the vast majority of the work, there was still one telephone outlet in the front bedroom that was not satisfactorily corrected. 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 failed to 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).

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. 266456 and 266457 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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, September 24, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000