ALJDEC decisions subject to certification as final

2020A-00388-CHC-ROC · Registrar of Contractors · 2021-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey Lynn Steele,

COMPLAINANT

C & E Builders, LLC,

License No. ROC 172404,

RESPONDENT

No. 2020A-00388-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 7, 2021

APPEARANCES: Complainant Jeffrey Lynn Steele appeared on his own behalf. Erika Johnsen, Esq. represented Respondent C & E Builders, LLC. Christa Pizzolanti and Eric Helm appeared as witnesses for Respondent C & E Builders, LLC. Arizona Registrar of Contractors Investigator Steve Klein appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

C & E Builders, LLC (“Respondent”) is the holder of License No. 172404 issued by the Arizona Registrar of Contractors (“Registrar”). Christa Pizzolanti is a member of Respondent. Eric Helm is a project manager for Respondent.

On or about October 31, 2018, Jeffrey Lynn Steele (“Complainant”) contracted with Respondent for Respondent to construct a patio extension and install a decorative underlayment to the existing patio of Complainant’s home. The contract price was $24.000.00 and Complainant paid Respondent in full for the work.

On January 23, 2020, Complainant filed a Complaint with the Registrar against Respondent alleging poor work, specifically, “Patio roof beam is seperating [sic].”

The Registrar assigned the Complaint to Investigator Steve Klein. A jobsite inspection was scheduled for March 6, 2020. At that time, while meeting for the jobsite inspection, the parties agreed to resolve the matter. As a result of that agreement, Investigator Klein closed the Complaint.

On July 1, 2020, Investigator Klein received an email from Complainant requesting to re-open the Complaint and a request to add an addendum to the Complaint to include the following items of Complaint:

Laminated beam on outdoor patio has suffered water damage resulting from repeated water leaks. Beam is separating and discoloring, with some splintering.

Tongue and groove ceiling on outdoor patio is sagging, bulging and separating in areas, possibly due to resulting water damage. Tongue and groove ceiling was installed over existing drywall on the ceiling.

There is still a small, residual water leak entering over the beam.

This is all outdoor work that extended the patio to the existing structure.

The general contractor failed to acquire required permits for any of the work performed.

Investigator Klein re-opened the Complaint and conducted a jobsite inspection on August 5, 2020. Respondent did not attend the jobsite inspection. After the jobsite inspection, on August 5, 2020, Investigator Klein 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 August 24, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: Laminated beam on outdoor patio has suffered water damage resulting from repeated water leaks. Beam is separating and discoloring, with some splintering.

Investigator’s Observation: Verified beam is separating at glue-lam joints

Complaint Item 3: Tongue and groove ceiling on outdoor patio is sagging, bulging and separating in areas, possibly due to resulting water damage. Tongue and groove ceiling was installed over existing drywall on the ceiling.

Investigator’s Observation: Verified wood ceiling sagging in several areas.

Complaint Item 4: There is still a small, residual water leak entering over the beam.

Investigator’s Observation: The beam cracking and ceiling issues appear to be caused from moisture.

Complaint Item 3: The general contractor failed to acquire required permits for any of the work performed.

Investigator’s Observation: Complainant states a building permit was never purchased.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority

All errors in original.

On August 24, 2020, Complainant contacted Investigator Klein to advise that Respondent had failed to address the Written Directive. A compliance inspection was not conducted due to Respondent not having performed any corrective work. Investigator Klein thereafter forwarded the Complaint to the Registrar’s Legal Department.

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(a), and A.R.S. § 32-1154(A)(22).

Investigator Klein testified consistently with the above findings. Regarding the roof leak, Investigator Klein testified that he did not verify a leak, as a water test was not performed, however, he observed water damage, and Respondent indicated that Respondent “would take care of it.” Investigator Klein opined that Respondent was not responsible for the existing roof, however, because Respondent installed an extension to the existing roof, it is possible that Respondent’s work caused a leak where the patio extension is “tied in.” However, on June 4, 2021, Investigator Klein conducted a pre-hearing inspection and at that time, Complainant advised him that the roof is no longer leaking, and that the only items remaining to be completed are the staining of the ceiling and the stucco repairs, as well as removal of construction debris. Investigator Klein testified that Respondent had replaced the beam and the ceiling, and had obtained the permit. However, Investigator Klein confirmed that the ceiling still needs to be stained and the stucco still needs to be repaired.

Mr. Steele testified that he contracted with Respondent on October 31, 2018, to install an extension to his patio roof. Mr. Steele testified that Respondent performed the construction between January and February 2019, and he paid Respondent in full in January 2019. Mr. Steele testified that he discovered a leak between the existing structure and the extension. Mr. Steele asserted that he sent multiple emails and photographs to Respondent. Mr. Steele testified that his handyman told him that he could repair the leaks which were caused by “pounded holes” and “linear cracks in the stucco,” combined with a lack of caulking and no flashing. Mr. Steele testified that Respondent paid his handyman to repairs the leaks. Mr. Steele testified that the handyman “did a really good job” and was effective at preventing further leaks.

Mr. Steele testified that at the time of the March 6, 2020 jobsite inspection, Chad Cuomo, who was Respondent’s qualifying party at that time, agreed to remedy the situation and came back with an architect. However, Mr. Steele testified that there was no communication from Respondent after March 6, 2020, and therefore, on June 16, 2020, he requested a progress report from Respondent.

Thereafter, Mr. Steele requested that his Complaint with the Registrar be re-opened because Respondent was non-responsive. Mr. Steele testified that Respondent did not attend the August 5, 2020 jobsite inspection.

Mr. Steele expressed his frustration that he agreed to continue the hearing in this matter multiple times in order to afford Respondent the opportunity to perform the required work, and it is still not completed. In February 2021, Respondent performed work on the project. Mr. Steele contended that Respondent damaged the roof and caused another leak when one of its employees walked on the roof. Mr. Steele had the roof on the existing structure repaired by a roofing contractor.

Mr. Steele testified that he received an email from Respondent on May 7, 2021, that advised him that Respondent would install the “T & G” on June 10th. On May 10th, Respondent’s employees arrived at Complainant’s home. However, Complainant was not expecting Respondent’s employees on that date due to the email having provided a date of June 10th. Complainant’s dogs were in the backyard, and Complainant’s wife asked Respondent’s employees not to enter the yard until she had an opportunity to bring the dogs inside. Respondent’s employees did not wait for Complainant’s wife to allow them into the yard, but rather, Respondent’s employees let themselves into the yard. This resulted in a verbal altercation, and Respondent’s employees left the premises.

Ms. Pizzolanti testified that the job was substantially complete in January 2019, and that Respondent did not construct the existing patio structure, but rather installed tongue and groove to the ceiling of the patio structure. Ms. Pizzolanti testified that the matter was “seemingly resolved” at the jobsite inspection on March 6, 2020, as Respondent had agreed to obtain the required permit. Ms. Pizzolanti testified that Chad Cuomo brought Rob Schwan, an architect to inspect the project, and began to work with the city to obtain the permit, but encountered delays due to the pandemic. Ms. Pizzolanti testified that Respondent was waiting for the permit to be approved from June 2020 until August 2020. On September 11, 2020, the city requested additional information including the elevations of the home.

Ms. Pizzolanti testified that Respondent did not attend the August 5, 2020 jobsite inspection because Respondent believed, having never experienced the complaint process with the Registrar, that their July 2, 2020 email to Investigator Klein stating that Respondent was waiting on engineering prior to submitting the permit application to the city, was sufficient.

Ms. Pizzolanti testified that Respondent sent an email to Complainant on July 24, 2020, informing him that Respondent was still waiting on the permit, and once the permit was received, Respondent would replace the beam. Ms. Pizzolanti explained that Respondent did not respond to the Written Directive because “in their mind, [Respondent] informed the Registrar that the permit was still in progress.” Ms. Pizzolanti apologized for the lack of communication and the delays and blamed Respondent’s lack of knowledge regarding the complaint process. Ms. Pizzolanti asserted that Respondent believed that when it communicated with the Registrar, Respondent was communicating to Complainant. Ms. Pizzolanti acknowledged that her May 7, 2021 email to Complainant contained a typographical error regarding the date of installation. The email was supposed to advise that Respondent would return to the project on May 10th, however, the email advised Complainant that Respondent would return on June 10th.

The permit for the project was issued on September 24, 2020, six and a half months after the parties’ March 6, 2020 meeting and agreement. Ms. Pizzolanti admitted that Respondent was not aware that the City of Phoenix required a permit for the project and further admitted that it was Respondent’s responsibility to obtain the permit and Respondent “failed.”

Ms. Pizzolanti testified that there were delays caused by Complainant’s family members’ illnesses and travel. Ms. Pizzolanti further testified that other delays were attributable due to the roof leak. All roofing repairs were complete by April 18, 2021.

Eric Helm testified that this project “seemed to be a simple project.” Mr. Helm described the project as a patio extension with a concrete addition. Mr. Helm testified that it is “normal to get permits after the fact.” Mr. Helm explained that there is a “typical lead time” for obtaining a permit of three to six months, that this project was at the “back of the list” for the architect, and that Respondent had communicated multiple times with the architect. However, Mr. Helm acknowledged that Respondent did not communicate with Complainant.

In an October 5, 2020 email from Rob Schwan to Respondent, Mr. Schwan indicated that plans were not submitted to the city until June 18, 2020, more than three months after the March 6, 2020 meeting and agreement.

Mr. Helm testified that because Complainant had such a good relationship with his handyman, Respondent offered to pay the handyman to “take care” of the leak. Mr. Helm testified that Complainant was satisfied with the handyman’s repair of the leak.

Mr. Helm testified that after the November 2020 hearing setting, he spoke with Complainant multiple times and that Complainant informed him that he had an existing roof issue, and was hiring a roofing contractor to repair the roof. Complainant notified Respondent that the existing roof was repaired as of April 18, 2021.

Mr. Helm testified that when Respondent arrived at Complainant’s home on May 7, 2021, Complainant was reasonable however, his wife was belligerent, and upset Respondent’s employees. Mr. Helm testified that his “workers were shaking and upset.” Mr. Helm asserted that all corrective work could have been accomplished on May 7, 2021, however, Complainant’s wife prevented that work from being accomplished. Mr. Helm acknowledged that had Respondent’s email to Complainant contained the correct date of May 7th, rather than June 7th, the work would have been completed.

Respondent argued that the “timing of the permit” impacted Respondent’s compliance with the Written Directive and that “it was not possible to comply.”

Administrative notice is taken of Respondent’s prior License record on June 10, 2021. Such prior License record reflects that Respondent’s License No. 172404 was first issued on March 12, 2002, and is active. Such prior License record also reflects that the instant Complaint is the only open complaint and there is one resolved/settled complaint. There have been no previous complaints resulting in discipline 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 Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). A party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.

“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). A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. section 32-1154(A) provides the following:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code R49108(a) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The credible, substantial, and probative evidence of record 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(a).

The credible, substantial, and probative evidence of record further established that Respondent did not compete the corrective work following the Written Directive being issued. Respondent agreed during a March 6, 2020 jobsite inspection that it would obtain the necessary permit and correct any deficiencies. Respondent failed to do so resulting in the re-opening of the Complainant and the issuance of the Written Directive on August 5, 2020, with a deadline of August 24, 2020. The Written Directive required Respondent to obtain a permit for the project. This was a project that Respondent contracted to perform in October 2018, completed in January or February of 2019, and for which it agreed to obtain the permit on March 6, 2020. However, Respondent did not obtain the required permit until September 24, 2020. The Administrative Law Judge does not find valid justification existed for Respondent’s failure to comply with the Written Directive, notwithstanding the pandemic. Although the obtaining of permits from municipalities may have been delayed due to the pandemic, there was no specific evidence presented by Respondent that on this particular project, the delay was reasonable. In fact, the evidence established that Respondent did not apply for the permit until mid-June 2020 (over three months from the March 6, 2020 meeting), and blamed such delay on the architect. 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. 172404 for a period of five (5) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, June 15, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000