ALJDEC decisions subject to certification as final

2019A-05748-CHC-ROC · Registrar of Contractors · 2020-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Laura Gayle Ashe Anaya,

COMPLAINANT

Summit Restoration and Construction LLC,

License No. 284345,

RESPONDENT

No. 2019A-05748-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 18, 2020

APPEARANCES: Complainant Laura Gayle Ashe Anaya appeared and was represented by Timothy Remick. Timothy Roth, Member and Qualifying Party, appeared on behalf of Respondent Summit Restoration and Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Summit Restoration and Construction LLC (Respondent) is the holder of License No. 284345 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 6, 2018, Laura Gayle Ashe Anaya (Complainant) entered into a contract with Respondent for the restoration of her home after a fire.

On or about November 18, 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 Jack Grimm. After a jobsite inspection, Investigator Grimm 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 January 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:

Complaint Item 2: Sheathing was exposed to rain and weather is not flat, edges mismatched by as much as 1⁄2 inch. No clips.

*Correct locations of poorly lined edges observed on the bottom side of the roof sheathing.

Complaint Item 6: Misaligned truss bottom chords will yield unsatisfactory results in vaulted ceilings.

*Correct misalignment of interior ceiling vault 1⁄2 inch or greater at peak and across bottom cords of trusses.

Complaint Item 9: Masonry pattern inconsistencies. Grouting issues and compliance questions.

*Correct block pattern error over back door. Correct voids in mortar joints. Correct all block and mortar joints that are not straight, level and plumb. Tooled mortar joints should match existing house for consistency.

Complaint Item 21: Summit primed and sealed the front of the house rather than restore it to a natural pre-fire state without written authorization or verbal request to change from the permit to put back to the original state.

*Correct painted slump block on the front of the house per insurance scope of work. Scope states to soda blast exterior block.

Following the issuance of the written directive, Respondent performed corrective work on the project. After the deadline in the directive expired, Investigator Grimm was notified some corrective work had been performed, but Complainant was not satisfied with the results.

On or about February 3, 2020, Investigator Grimm performed a Compliance Inspection. At that time, Investigator Grimm observed that Complaint Item 21 had been properly addressed, but the three other items had not been addressed to comply with the Registrar’s standards.

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 Grimm testified that on May 1, 2020, he performed a prehearing jobsite inspection. At that time, Investigator Grimm observed that Complaint Items 2 and 9 had been corrected to be in compliance with the Registrar’s standards. Investigator Grimm indicated that he observed that all but one of the trusses had been shimmed to the point where it was within the Registrar’s standards. Investigator Grimm believed that the last truss needed to be shimmed more to line up with the other trusses properly. Investigator Grimm did not express any concern with the method Respondent used to correct the issue.

Complainant testified that she and her daughter took photographs of the project on April 16, 2020, to show the issues. Complainant asserted that the paper shims used by Respondent to address the truss issue was not an appropriate means to correct the problem. Complainant recounted other problems she had with Respondent throughout the project. Complainant also argued an observable issue with her roof should be included in the hearing, but that issue was not including in the written directive and Respondent was not provided an opportunity to address it.

Mr. Roth testified that Respondent was only half way through the rough trades when Complainant terminated the contract. Mr. Roth asserted that had Respondent been allowed to keep performing work on the project, the minor issue with the uneven trusses would have been resolved during the drywall and framing phase. Mr. Roth stated that the paper shims were common industry practice and were an appropriate way to correct the issue. Mr. Roth indicated that given the home originally had a flat roof and Respondent was contracted to install a vaulted roof. Mr. Roth also noted that when Complainant called for the miscellaneous structural, masonry, and roof/nail/truss inspections from the City of Peoria after Respondent was removed from the job, the project passed the inspections.

Administrative notice is taken of Respondent’s prior License record on July 8, 2020. Such prior License record reflects that Respondent’s License No. 284345 was first issued on April 7, 2013, and is current. Such prior License record also reflects that there were no other open complaints and one prior complaint that was resolved/settled 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. 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 completed corrective work following the Directive being issued. While Investigator Grimm testified one truss was still out of compliance, Mr. Roth credibly testified that the minor issue with the remaining truss would be corrected during the drywall and framing phase of the project. Therefore, Complainant did not establish 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

Accordingly, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Laura Gayle Ashe Anaya’s complaint in Case No. 2019A-05748 against Respondent Summit Restoration and Construction LLC’s License No. 284345.

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 8, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000