ALJDEC decisions subject to certification as final

2020A-00408-CHC-ROC · Registrar of Contractors · 2020-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Catherine Louise Brown,

COMPLAINANT,

All Pro Arizona LLC,

License No. ROC 322267,

RESPONDENT.

No. 2020A-00408-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 3, 2020

APPEARANCES: Complainant Catherine Louise Brown appeared on behalf of herself. Melvin Brett Randall appeared on behalf of Respondent All Pro Arizona, LLC (All Pro).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

All Pro holds License 322267 issued by the Arizona Registrar of

Contractors (Registrar).

Melvin Brett Randall is All Pro’s qualifying party.

On or about May 7, 2019, Complainant Catherine Louise Brown and

All Pro entered into a new home construction contract.

On or about June 3, 2019, All Pro started construction.

On or about November 2, 2019, All Pro completed the work.

On or about January 24, 2020, the Registrar received a complaint from

Ms. Brown alleging poor workmanship on the part of All Pro.

7. On March 6, 2020, Registrar Investigator Randy Morris conducted a jobsite inspection.

8. On March 25, 2020, the Registrar issued a Directive to All Pro requiring that All Pro correct complaint items 7, 11, 12 13, 15, 17, 19, 20, and 21 listed in the complaint. The original deadline for compliance was April 27, 2020.

9. On April 7, 2020, Ms. Brown contacted Investigator Morris. Ms. Brown explained to Investigator Morris by email that All Pro wanted to come to her home to correct the items in the Directive. Ms. Brown inquired whether the Registrar had guidelines for complying with the Directive due to the coronavirus. Ms. Brown explained that she wanted All Pro to complete the exterior work first and finish the interior work at a time when it would be safe to have people in her home.

10. On April 17, 2020, Ms. Brown requested that All Pro start on the exterior of her home first through an email. The April 17, 2020 email provided, in relevant part, as follows:

On April 15, I forwarded you the email from Inspector Morris with the ROC, but I'm sending it again to make sure you've

seen that they may not grant an extension for the work to be completed. Considering this possibility, you may want to get

started on the work in order to complete it by the deadline of April 27, 2020. As I said in my previous email, you can work

on the exterior items now. When those items are completed, if an extension has not been granted, we will allow access

to the interior in order for you to be able to complete those items also.

Let me know how you would like to proceed.

11. On April 17, 2020, Investigator Morris notified Ms. Brown by email that he was unsure of whether the agency would grant a 30 day extension. The April 17, 2020 email provided, in relevant part, as follows:

The Agency has not yet determined if an additional 30 day extension will be offered for Directives at this time. We are waiting for the Governor to determine when operations will go back to normal and the current thinking is April 30, 2020 will be the last day of the imposed restrictions. I will advise you as we get closer to the directive due date.

12. On April 17, 2020, Mr. Randall notified Ms. Brown that All Pro would visit her home the following week to work on the exterior. The April 17, 2020 email provided, in relevant part, as follows:

We will stop by next week and do the touch up on the outside. I will reach out to you on Monday so that we can coordinate that time.

13. Investigator Morris notified Ms. Brown and All Pro that the Directive deadline was extended to May 27, 2020. The Directive Extension provided, in relevant part, as follows:

WRITTEN DIRECTIVE FROM THE REGISTRAR

Extension

Dear Respondent:

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 May 27, 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 reasons, 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:

Compliance Item: - 7. “Floor in great room was not leveled prior to tile installation. There are gaps between baseboards and tile.”

Investigator’s Observation: Measurements of the great room/entry/kitchen floor indicates that the floor is uneven and has a rise/bow in the sub-floor in excess of 1⁄4 inch in 12 feet, which does not meet the minimum workmanship standards.

The allegation for poor workmanship is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 11. “Several areas on the walls have poor application of drywall. There are gaps around outlets and above the medicine cabinet. There are also trowel lines on several walls that should not be visible.”

Investigator’s Observation: Noted inconsistent application of the wall texture throughout the interior of the house, including trowel lines, gouges and texture voids/over-application around electrical outlets and switches. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 12. “Double doors on guest bedroom have an excessive gap beneath the do0r and also do not close properly.”

Investigator’s Observation: The double door at the guest bedroom entry are not square within the frame, the doors appear warped/bowed and do not close/latch properly. This part of the allegation is verified. The Respondent shall correct the function of the doors to insure proper function and fit.

The allegation of the excessive gap at the bottom of the doors could not be verified as all of the interior doors have approximately the same “gap” between the bottom of the door and the floor. Observed that there are no HVAC relief/bridge ducts installed in the affected rooms and the doors would normally need to be cut as installed to allow adequate air floor from the rooms back to the HVAC return when the doors are closed. The Complainant was not able to provide any evidence to prove the doors have excessive “gaps” at the door bottoms. This part of the allegation is not verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 13. “Door to master bedroom also has excessive gap underneath and does not close properly.”

Investigator’s Observation: See Complaint Item #12 for description and resolution of the complaint item.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 15. “Downspout from gutter along garage eaves is not painted.”

Investigator’s Observation: The downspout at the side of the garage door is white and the gutter is a dark brown color and the downspout does not match the color scheme of the residence. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 17. “Front door has paint bubbling on it and needs to be repainted.”

Investigator’s Observation: Observed peeling and flaking paint at the exterior of the main front entry door. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108 Poor work not performed in accordance with professional industry standards.

Compliance Item: - 19. “Drain pipe from hot water heater (exterior; front yard) needs to be painted.”

Investigator’s Observation: The paint on the water heater temperature/pressure relief valve drain line at the exterior of the house has been painted, however, the paint is thin and poorly applied with exposed copper pipe observed.

The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 20. “There are areas on eaves that were missed during painting and are white instead of dark gray. These need to be painted.”

Investigator’s Observation: Thin paint and paint voids observed under the eaves, including the bird block. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 21. “Exterior wall around service door from garage to side yard has overspray from the dark door paint onto the white stucco. This needs to be corrected.”

Investigator’s Observation: Observed over-spray and/or mixing of paint at the garage exterior passage door, no trim has been installed and the stucco has been applied up to the door wood frame, paint from both has been mixed on the

door frame and adjacent stucco surfaces. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

14. On May 1, 2020, Investigator Morris inquired with Ms. Brown by email whether All Pro had complied with the Directive. Investigator Morris’s May 1, 2020 email provided, in relevant part, as follows:

Please provide the status of the Directive. Has the Respondent complied fully with the Directive? If yes, do you accept the work? If no, I will need to schedule a compliance job site inspection next week. Please advise as soon as possible.

Thank you.

15. On May 1, 2020, Ms. Brown responded to the email the same day. The May 1, 2020 email provided, in relevant part, as follows:

He came out and worked on three exterior items. Two are acceptable; one is not. One exterior item was not worked on

at all. No interior items have been corrected. He has not said whether or not he is planning to do anything. Nothing is

currently scheduled.

Thank you.

16. On May 14, 2020, Investigator Morris conducted a compliance inspection. Investigator Morris observed that All Pro failed to correct the items listed in the Directive, with the exception of complaint item 15.

17. On or about May 22, 2020, the Registrar issued a Citation against All Pro’s license.

18. Through the Citation, the Registrar alleged that All Pro may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. section 32- 1154(A)(22).

19. On May 26, 2020, Ms. Brown sent an email to Investigator Morris.

The May 26, 2020 email provided, in relevant part, as follows:

Hi Inspector Morris, I called today and left you a voicemail but I wanted to follow up with an email. We are not sure what all this means now. Is All Pro still able to come and try to correct their work, or is time up for that? We are frustrated with them because they scheduled paint/drywall people who did not have enough time to finish; they had other jobs to do and they were told the work would only take a couple of hours. They've been back 3 times and are still working here today; a week after they originally started. We don't think it's their fault; they were misled about how much work there was to do so they weren't able to schedule enough time and had to work around other jobs. None of the other work has been completed, or even scheduled. At some point, are they out of time and if so, are we able to hire our own people? And then ask to be reimbursed by All-Pro for the work? They have had 2 months now and this could drag on for a very long time if they don't have some type of deadline. Could you please explain to us how this process works now that it's been forwarded to your legal department?

Thank you very much.

20. On May 26, 2020, Investigator Morris sent an email responding to Ms. Brown’s email. The May 26, 2020 email provided, in relevant part, as follows:

You do not have to allow the Respondent to work at your home anymore. The Respondent has been cited for failure to comply with the Directive and a court hearing is being scheduled. You may not fix any of the complaint issues at this time but will need to wait until after the hearing. Once the hearing has been completed, you will be instructed as to the process to obtain bids and then get the work corrected/repaired. Please contact me if you have any questions.

21. All Pro filed a timely answer to the Citation.

22. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

23. A hearing was held on September 3, 2020.

24. On June 29, 2020, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on July 29, 2020, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

25. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

26. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of All Pro.

27. A hearing was held on September 3, 2020.

28. At hearing, Ms. Brown asserted that she never denied access to All Po. Ms. Brown asserted that All Pro conducted poor work in the construction of her home. Ms. Brown stated that All Pro failed to correct the items listed in the Directive.

Ms. Brown asserted that All Pro notified her on May 24, 2020 that it would not have workers available to complete the Directive until May 30, 2020. Because several items were outstanding on the Directive, Ms. Brown contended that All Pro would never had completed the Directive items by the deadline of May 27, 2020.

29. Investigator Morris testified regarding his investigation of the complaint and issuance of the Directive. Investigator Morris explained he conducted a compliance inspection on May 14, 2020 and sent the case to the Registrar’s legal department before May 27, 2020. Investigator Morris explained that he the Directive deadline was extended from April 27, 2020 to May 27, 2020.

30. Mr. Randall explained the deadline for compliance under the Directive was May 27, 2020. Mr. Randall asserted that All Pro was willing and ready to complete the Directive items. However, Ms. Brown notified Mr. Randall before May 27, 2020 that she was not obligated to allow All Pro on her property because the case had been sent to the legal department. Mr. Randall denied that he told Ms. Brown that he would not have workers available until May 30, 2020.

31. Administrative notice is taken of All Pro’s prior License record on September 23, 2020. Such prior License record reflects that All Pro’s License No. 322267, was first issued on October 10, 2018, and is current. Such prior License record also reflects that there are two open complaints against All Pro’s license. Such prior License record also reflects that All Pro’s license has never been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. 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).

The preponderance of the evidence showed that the issues found by

Investigator Morris demonstrate that All Pro failed to construct Ms. Brown’s home in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

5. The evidence presented at hearing showed that Investigator Morris extended the deadline to comply with the Directive to May 27 2020. It is undisputed that Investigator Morris conducted a compliance inspection and referred the matter to the Registrar’s legal department before the compliance deadline expired. The weight of the evidence showed that Ms. Brown informed All Pro that she was advised by the Registrar that she was not required to allow All Pro to complete any further repairs before the Directive deadline expired. Upon consideration of all of the evidence presented, the Administrative Law Judge concludes that All Pro had valid justification for failing to comply with the Directive by May 27, 2020.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar, suspend License No. ROC 322267 of All Pro Arizona, LLC for a day.

-54864001

001

-137160-45720000Done this day, September 23, 2020.

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 is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors