ALJDEC decisions subject to certification as final
2020A-00324-CHC-ROC · Registrar of Contractors · 2020-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Eileen Davidson,
COMPLAINANT
v.
Cactus Pine Builders LLC,
License No. ROC 237667,
RESPONDENT
No. 2020A-00324-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 7, 2020
APPEARANCES: Complainant Eileen Davison, appeared on her own behalf by Google Meet. Fred Padilla appeared by Google Meet on behalf of Respondent, Cactus Pine Builders, LLC. Christopher Allison, Inspector for the Registrar of Contractors appeared by Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Cactus Pine Builders, LLC. (Respondent) is the holder of License No. 237667 issued by the Arizona Registrar of Contractors (Registrar).
On or about December 18, 2018, Eileen Davison (Complainant) signed a contract with Respondent to enclose a covered deck and to install a gable in the front of the home.
Worked commenced on or about January 9, 2019 and stopped in July 2019.
On or about January 21, 2020, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Christopher Allison. The original inspection was performed on February 18, 2020.
Investigator Allison then issued a written directive on or about February 24, 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 13, 2020.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Drainage and grading away from the home failed.
Investigator’s Observation: At the time of inspection the final inspection was not passed. #1 on inspection report from 1/10/2020 states. "need drainage and grading away from building.
The Respondent is responsible for drainage and grading the areas that were affected by the construction. The Respondent is not responsible for areas that do not meet drainage and/or grading requirements and were unaltered by the construction.
Governing Rule: Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 2 - Project was not built per plans submitted from the home failed.
Investigator’s Observation: At the time of Inspection the final inspection was not approved. Respondent shall submit to the investigator an approved inspection for this item.
Governing Rule: Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 3 - Slabs in Front Entry were not inspection before concrete was poured.
Investigator’s Observation: At the time of Inspection the final inspection was not approved. Respondent shall submit to the investigator an approved inspection for this item.
Governing Rule: Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 4 - Handrail on back deck steps must return. Investigator’s Observation: At the time of inspection the Respondent stated that this has been corrected, but has not had an inspection from the building department. Respondent shall submit to the investigator an approved inspection for this item.
Governing Rule: Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 5 - Handrail must be 34-38 from to 6 steps must be within 3/8
Investigator’s Observation: At the time of inspection the Respondent stated that this has been corrected, but has not had an inspection from the building department. Respondent shall submit to the investigator an approved inspection for this item.
Governing Rule: Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 6 - Window seat in back addition is sinking/moving. Investigator’s Observation: At the time of inspection the Complainant indicated that it appeared the window seat was sinking/moving because the doors were not opening easily. There were also some cracks in the drywall to indicate some type of movement. Settling is common with new construction and there was nothing that indicated excessive or abnormal settling. Respondent shall adjust the doors to function properly.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 7 - Back door does not lock due to sinking/movement. Investigator’s Observation: At the time of inspection the door was not locking properly. [S]ettling is common with new construction and there was nothing that indicated excessive or abnormal settling. Respondent shall adjust the doors to function properly.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 8 - Roof line in interior window seat is uneven and not level.
Investigator’s Observation: At the time of inspection the sloped ceiling over the window seat had a curve and/or arch to it. This is uncommon. Respondent shall correct in a manner appropriate with workmanship and industry standards.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 9 - Cabinet under window seat does not open and close due to sinking/movement.
Investigator’s Observation: At the time of inspection the Complainant indicated that it appeared the window seat was sinking/moving because the doors were not opening easily. There were also some cracks in the drywall to indicate some type of movement. Settling is common with new construction and there was nothing that indicated excessive or abnormal settling. Respondent shall adjust the doors to function properly.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Following the issuance of the written directive, attempts were made by Respondent to fix complaint items prior to the March 13, 2020, deadline.
A Compliance Jobsite Inspection was performed on April 20, 2020, and Inspector Allison found that Complaint Items 1, 2, 3, 4, 5 and 8 were not in compliance with the Registrar’s workmanship standards.
On April 24, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).
There was no pre-hearing inspection performed.
Complainant testified that per the original contract, the work was supposed to take anywhere between six to eight weeks, weather permitting. She further testified that as of the date of the hearing the work was not complete.
Complainant testified that while the Written Directive was issued on February 24, 2020, Respondent did not make contact until March 2, 2020, to schedule a time to make the repairs.
Complainant further testified that Respondent would be available Tuesday, March 10, 2020, through Friday, March 13, 2020, with a 9:00 a.m. start time. She testified that the total hours worked were just over six, while over fifteen hours were scheduled.
Complainant testified the building plans were never changed and the gable was supposed to be 12 feet. Further, there was water damage inside the property, damage to the front door jambs, and the gutters were not allowing the water to drain in the correct direction.
Complainant testified that she gave Respondent a key to the house for easy access when she was unavailable to be present during the winter, to allow the project to go forward.
Complainant testified that the window was three inches off center, and “looks ridiculous.”
Finally, Complainant testified that she always paid for the work and that Respondent knew there were going to be challenges with the build.
Mr. Padilla testified generally that all items requiring attention, under his control, were corrected properly.
With respect to items 1 and 2 in the Complaint, Respondent testified that he fixed/repaired what he believed he was responsible for and that it was up to the City of Show Low to complete the final inspection.
Respondent testified that with Complaint item 3, he believed the concrete issue was resolved, and was awaiting the approved final inspection.
In addition, Respondent further testified Complaint items 4, 5 and 8 have been fixed and/or corrected.
Respondent testified that he always had access to the outside of the property, but limited access to the inside.
Respondent determined that the water and drainage issues were caused by tree roots which affected the water flow away from the house, and did what he could so that water would not get into the property.
With regards to the front door settling and the ultimate repair of the same, Respondent testified that it was normal for there to be some settling and did repair the door to correct the issue.
Respondent testified that the gable was not built to plan, but assured Complainant that the gable would not look like church which she was concerned about.
In his testimony, Respondent acknowledged that he left a fan under the house and left Complainant’s refrigerator in the middle of the room. He also admitted that there was no final passing inspection of the corrected work he performed.
Finally, Respondent testified that the project was a challenge and did not go as smoothly as it could have, but the work resulted in a beautiful gable and room addition.
Administrative notice is taken of Respondent’s prior License record on July 7, 2020. Such prior License record reflects that Respondent’s License No. 237667 was first issued on October 30, 2007, and is current. Such prior License record also reflects that there are 2 open complaints, which includes the present complaint, and 1 prior disciplinary action complaint 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 the drainage and grading, the front entry slab, and the handrail were not in compliance with the city code. Therefore, Complainant established that Respondent’s work departed from or disregarded the building codes of the City of Show Low in violation of A.R.S. § 32-1154(A)(2)(b).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The roof line in the interior window seat is uneven and not level. 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 13, 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 No. 237667 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 13, 2020.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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