ALJDEC decisions subject to certification as final

2020A-00585-CHC-ROC · Registrar of Contractors · 2021-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christopher Armand Milovich,

COMPLAINANT

Shearer Development LLC,

License No. ROC 289964,

RESPONDENT

No. 2020A-00585-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 27, 2020, and April 1, 2021 with record held open until May 3, 2021.

APPEARANCES: Complainant Christopher Armand Milovich appeared via Google Meet on his own behalf. Clint Shearer appeared via Google Meet on behalf of Respondent Shearer Development LLC. Steve Nelsen, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Shearer Development LLC (Respondent) is the holder of License No. 289964 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 17, 2018 Christopher Armand Milovich (Complainant) signed a contract with Respondent for construction of a new home. The contract amount was for $393,750.00.

On or about February 4, 2020, the Registrar received a Complaint containing thirty-five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Paul Smith. The jobsite inspection was performed on May 27, 2020.

Investigator Smith then issued a Written Directive on or about December 28, 2020 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 June 29, 2020.

. . .

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

Compliance Item: 1 - Master Bedroom/Bath - wrong screen door, various chipped tiles in MB, nail pops

Investigator’s Observation: I observed a screen door, no chipped tiles and one nail pop. Respondent stated that all issues will be addressed.

Compliance Item: 5 - Living Room - grout missing from floor

Investigator’s Observation: I observed a piece of grout, pointed out by the Complainant, was missing in the main Livingroom

Compliance Item: 6 - Kitchen - grout is separating, nail pops, cabinet is splintered, no seal underneath cooktop

Investigator’s Observation: I observed a small crack in the oven cabinet seam. At this point no nail pops or cook top seal was pointed out to me

Compliance Item: 7 - Kitchen Pantry - white lump on ceiling

Investigator’s Observation: I observed several areas throughout the home that were pointed out to me in reference to the drywall. Respondent stated will address all drywall complaints.

Compliance Item: 8 - Bedroom #3 - drywall crack north wall

Investigator’s Observation: I observed a horizonal line in the drywall approximately 4' off the floor

Compliance Item: 10 - Hallway - metal edging is showing

Investigator’s Observation: I observed an area that the paint needs to be touched up

Compliance Item: 13 - L Sliding Door - door panel needs to be replaced due to "x" scratch & cover-up by workers

Investigator’s Observation: I observed a small painted X above the door handle. Respondent stated will address

Compliance Item: 17 - Master Bedroom + Bedroom #2 - doors are warped and do not shut

Investigator’s Observation: Complainant stated the door shuts correctly now. Respondent pointed out the jamb needed to be adjusted and will address the issue

Compliance Item: 18 - Master Bathroom - missing cabinet was supplied by contractor unassembled in box cabinet needs to be assembled by contractor

Investigator’s Observation: Complainant pointed to a box in the garage stating it was a cabinet that was not assembled. Respondent stated they will address the assembly

Compliance Item: 20 - Bath #2 - Bath tub drain needs to be fixed as it does not shut properly – it is currently unusable

Investigator’s Observation: Complainant showed me that the drain does not close all the way. Respondent stated they will address the issue

Compliance Item: 21 - Bath #2 – Tiles are separating from the wall and need to be grouted *New issue

Investigator’s Observation: I observed areas of grout missing. Respondent stated they would address the issue with the grout.

Compliance Item: 23 - Garage – multiple spots where there is separation from the wood & seal -- 1⁄4 to 1⁄2 “ wide *New issue. garage has a trip hazard

Investigator’s Observation: I observed the overhead garage door seal was not laying flush to the wood framing around the perimeter of the door. Respondent stated they will address.

Compliance Item: 25 - Hold-down in the front of the house is exposed and will rust *New issue

Investigator’s Observation: I observed a section of the strong tie exposed from the stem wall. Respondent stated they will address the issue.

Compliance Item: 26 - Gap in weep screen – front of house *New issue

Investigator’s Observation: Respondent stated they will address the issue. I did not observe the gap in the weep screen

Compliance Item: 29 - Window seals – multiple spots

Investigator’s Observation: I observed the bedroom window had a tight seal and was hard for the Complainant to open. Respondent stated they will address.

Compliance Item: 30 - Bathtub plug not closing properly

Investigator’s Observation: I observed the plug not closing completely. Respondent stated they will address

Compliance Item: 31 - Cracks in cabinets – kitchen

Investigator’s Observation: I observed a small crack in the cabinet seam just below the oven on the right.

Compliance Item: 32 - Chipped floor tiles - various

Investigator’s Observation: I observed areas in the kitchen and hall bathroom. Respondent stated they will address the issues

Compliance Item: 33 - 10’ crack/separation in drywall in Bedroom #3 & #4 – middle of wall

Investigator’s Observation: I observed a horizonal line in the drywall approximately 4' off the floor

Compliance Item: 35 - The 4” grade drainage elevation is not there

Investigator’s Observation: I observed current construction of a pool which changed the grading of the lot. Respondent noticed there was no weep hole in the block wall on the east side of the home and would address that issue

(All errors contained in the original).

On July 2, 2020, 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).

On or about July 13, 2020, Respondent e-mailed an Answer to the Registrar.

On or about July 28, 2020, a Notice of Hearing was issued setting a hearing on August 27, 2020 at the Office of Administrative Hearings, an independent state agency.

At the hearing in August, Complainant had agreed to allow Respondent additional time to make the repairs.

On February 1, 2021, Complainant provided a status update informing the tribunal that the repairs had not been completed and requested a hearing to go forward.

On April 1, 2021, the hearing was conducted.

Investigator Nelsen testified as to the Registrar’s involvement and the above timeline.

In addition, Investigator Nelsen testified that he believed that Directive items 1, 6, 21, 23, 25 and 31 remained incomplete.

Complainant testified on his own behalf and believed that he had been very gracious with his time.

Complainant testified that he sent additional punch list items on January 4, 2021, and received no response until the end of January/beginning of February. Complainant further testified that the work was pushed back until March, and during that time either Respondent’s workers failed to show up for work, or he would show up unannounced.

As to the cabinet doors, Complainant testified that he was confused as to why they had not been installed, as Respondent informed him that they were on hand.

Complainant testified that as to the tiles in the master bathroom, water was seeping out and the tiles were supposed to be installed on March 22, 2021, however Respondent failed to make the repairs.

Complainant testified that the garage door crack still had not been repaired and that there was a “trip hazard” in the garage which needed to be repaired.

Complainant further testified that there were many grout issues which remained unaddressed as well.

Clint Shearer testified on behalf of Respondent.

Mr. Shearer testified that most of the work was to be performed by sub-contractors. He believed that his scheduler had properly scheduled everything, but admitted fault for not ensuring this was the case.

Mr. Shearer testified that the painters and tile workers did not appear as scheduled. Further, Mr. Shearer testified that the plumber appeared at Complainant’s home unannounced. Mr. Shearer testified that he had no control over these workers as to when/if they would appear to perform the corrective work.

Finally, Mr. Shearer testified that he wanted to do anything he could to get the job done.

At the conclusion of the hearing, Complainant agreed to keep the record open until May 3, 2021, to provide even more additional time to complete the repairs, based upon Mr. Shearer’s representation that he wanted to complete the job.

On April 30, 2021, Mr. Shearer provided a status update that he would not be able to complete the bathroom tile repair until May 6, 2021.

On May 3, 2021, Complainant provided a status update informing the tribunal that the tile, garage trip hazard, and kitchen cabinets were not properly repaired.

Administrative notice is taken of Respondent’s prior License record on May 11, 2021. Such prior License record reflects that Respondent’s License No. 289964 was first issued on February 19, 2014, and reflects that there are 2 open complaints.

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 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 established that Respondent’s work was not in conformity with the Registrar’s standards. Water leaks in the master bathroom, warped cabinets, grout issues and garage issues all were present and Mr. Shearer did not dispute the same. 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 and Mr. Shearer admitted that he failed to complete the corrective work following the Directive being issued. Further, Complainant was more than generous in allowing over eight additional months to perform the corrective work on top of the 28 days given in the Directive. Mr. Shearer’s inability to remedy these issues timely is simply inexcusable. 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. 289964 for a period of fifteen 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)(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 30 days from the date of that certification.

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-137160-45720000Done this day, May 11, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000