ALJDEC decisions subject to certification as final

2019A-04951-CHC-ROC · Registrar of Contractors · 2020-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joel Collins,

COMPLAINANT

Wm A Clark Construction Inc.,

ROC License: ROC 080678,

RESPONDENT

No. 2019A-04951-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2020

APPEARANCES: Complainant Joel Collins appeared and was represented by Emilie Bell. William Clark, Owner and Qualifying Party, appeared on behalf of Respondent Wm A Clark Construction Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Wm A Clark Construction Inc. (Respondent) is the holder of License No. 080678 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 27, 2017, Joel Collins (Complainant) entered into a contract with Respondent for the construction of a new home.

Complainant released Respondent from the contract in July 2018. A different contractor completed the home. Prior to the termination of the contract, Respondent built the masonry fireplace, including the damper, for the home. Respondent did not install the external finish of the fireplace, i.e. the drywall, stucco, and stone façade. The masonry fireplace was inspected and green tagged by the City of Scottsdale.

Complainant moved into home in February 2019. Complainant did not turn the fireplace on until the summer of 2019. At that time, Complainant immediately noted a gas smell filling up the living room. Complainant did not turn the fireplace on again.

On or about September 30, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. During a jobsite inspection, Investigator Fagerburg turned on the gas fireplace and, within minutes, noted the underside of the wooden mantle was overly hot to the touch and spent gas started filling the living room. Investigator Fagerburg observed that the damper was installed differently than he normally saw them installed. Investigator Fagerburg was unable to say the installation of the damper was incorrect, but he determined that something was wrong with the fireplace to result in the heating of the mantle and the spent gas entering the living room.

After the jobsite inspection, Investigator Fagerburg 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 Friday 12-20-2019.

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:

Complaint Item 1: Fireplace issue: built by Wm. A Clark Construction, is not useable; when turned on fumes do not draft up, rather, out into the room.

Investigator’s Observation: I was able to verify that when the damper is open the spent gas fumes and heat do not draft up the chimney and instead disperse into the room from the top of the fireplace opening.

Governing Rule: ARS §32-1154 (A) (3)

Following the issuance of the written directive, Respondent went to the home to inspect the fireplace, but the gas line was off at the time so the cause of the issue could not be determined. After the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

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 Fagerburg clarified that he observed the damper was installed in an “unusual” manner. Investigator Fagerburg stated that dampers are usually installed on the back side of the fireplace with the damper opening to the exterior. In the instant matter, the damper opened to the interior. Investigator Fagerburg stated he was unable to verify if the damper was installed to comply with the City of Scottsdale code and indicated he did not know if the City of Scottsdale inspected the damper as part of its inspections.

Complainant testified that he had three other contractors inspect the project to prepare a bid to identify the issue and the cost of repairing the fireplace. All three contractors noted that the damper was installed backwards and would require substantial work to repair it.

Mr. Clark testified that he believed Respondent built a sound fireplace that was approved following the inspection by the City of Scottsdale. Mr. Clark asserted that the plans he used to build the fireplace indicated the stone veneer would be thicker than what was eventually installed and he believed a thicker veneer would have narrowed the opening of the fireplace which may have resolved the problem. Mr. Clark argued that Respondent was unable to take responsibility for a fireplace it did not finish. Mr. Clark maintained that the damper had to be correct because no one was able to definitely say it was wrong.

Administrative notice is taken of Respondent’s prior License record on March 31, 2020. Such prior License record reflects that Respondent’s License No. 080678 was first issued on November 2, 1988, and is active. Such prior License record also reflects that there were two open complaints 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).

Even though the Registrar was unable to identify precisely what caused the spent gas to draft into the living room than up through the chimney, three other licensed contractors offered their opinion that the incorrect installation of the damper was the cause of the issue. 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 attempt 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 No. 080678 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)(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, April 1, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000