ALJDEC decisions subject to certification as final

2020A-00703-CHC-ROC · Registrar of Contractors · 2020-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jacob Richard Vinton

COMPLAINANT

G & L Custom Services LLC

License No. 296545,

RESPONDENT

No. 2020A-00703-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 1, 2020

APPEARANCES: Complainant Jacob Richard Vinton appeared on his own behalf via Google Meet. Respondent G & L Custom Services, LLC was represented by Shane D. Buntrcok, Esq. who appeared via Google Meet. Loretta Cutlip appeared as a witness for Respondent via Google Meet. Jim Dimond, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

G & L Custom Services LLC. (Respondent) is the holder of License No. 296545 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 2, 2018, Jacob Richard Vinton (Complainant) signed a contract with Respondent for construction of a new home as well as two apartment units.

On or about February 19, 2020, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Dimond. The original inspection was performed on March 23, 2020.

Investigator Dimond then issued a written directive on or about April 10, 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 May 10, 2020.

. . .

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

Compliance Item: 2- At the contractor's request, an extensive punch list was provided on 1/29/2020 including multiple workmanship issues. The contract states the contract has 10 working days to complete items on this list.

Investigator’s Observation: At the main house, apartment A (downstairs) and apartment B (upstairs) numerous workmanship items were pointed:

1-Paint issues throughout all 3 residences-sporadic runs, inadequate and no coverage at door casings.

2-Gaps at shower curbs will allow water intrusion

3-Voids in backsplash grout in main house

4-Voids at outlet covers

5-staples not completely removed from doors.

6-painted over label on apartment bathroom door

7-apartment B closet not painted

8-paint touch up around ceiling fans

9-Scratched marble as master bath in house

10-poor trip joint above arcadia door

11-Base at fireplace is poorly scribed

12-Tape residue on garage keypad

13-Gray mortar on white blocks at fireplace and block wall

14-Trim for projections in siding need corrected

15-Roof nail in house fascia, north side

16-Toe kick at Apt A kitchen

17-Drawers collide at comer in kitchen

18- Double doors don’t fully open

19-painted over label at bathroom door in B

20-damaged cabinet at sink

21-Scratched roof panels

22-missing lookout metal end cap

23-mortar splash on pavers between the buildings

24-Bare hardware on red stair rail at apartments

25-Scratch in south arcadia door of house

26-poor mortar joint above crawl space door

Any remaining allegations either met standards, were outside of jurisdiction or there was not sufficient evidence to support the violation.

Governing Rule: Violation of any rule adopted by the Registrar; Namely AAC. R4-9-108(a): A contractor shall perform all work in a professional and workman like manner.

(All errors contained in the original)

After the initial filing, the Complainant filed an amended complaint detailing an additional seventeen items not on the original punchlist. The jobsite inspection for the amended items was held on June 11, 2020, and a written directive was issued on or about July 2, 2020 to Respondent that provided as follows:

. . .

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

Compliance Item: 32 - Crown molding joints in residence

Investigator’s Observation: The joint at the south wall of the hall in the main house should be tighter.

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: 40 - Failure to finish constructing fence as shown on the grading and drainage plan and detailed on sheet A3.0. The foundation for the fence was constructed. The screws for the attachment of the fence to the foundation were ordered by the owner per the contractor's instructions. The contractor stated in an email that they had picked up the screws. The contractor has not delivered the screws to the project. When asked by email about the screws, the contractor did not reply. Several emails and multiple conversations were had concerning the fence. Then one day the contractor decided he wasn't going to build it anymore

Investigator’s Observation: At the north side of the property, there are 8" x 8" footings for the posts to the fence.

The parties disagree as to whether the fence is included in the contract. The respondent maintains it's not on the city approved plans.

The complainant maintains it's always been on the plans and provided a copy of the page.

This is not the stamped plan.

There is correspondence between the parties discussing details of the fence.

The evidence supports that a fence should be there.

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: 42 - Trim painted the wrong color at the garage door and barn door track

Investigator’s Observation: There are sheen differences with the paint.

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

(All errors contained in the original)

On August 25, 2020, Investigator Dimond issued his Compliance Jobsite Inspection Notes. Investigator Dimond specifically noted, “Compliance Jobsite General Notes: The inspection held on June 11 was a combination Compliance and Addendum inspection.”

Further, Investigator Dimond noted the following:

Item 1-

There are still paint issues throughout- there are new runs, areas of wall color between closets, touch ups at doors are a different sheen, unpainted areas behind door hinges, garage trim with wood showing, end of door casings still not painted, touch up areas on walls that are the wrong color.- This item was not in compliance at the time of inspection.

Gaps at shower curbs will allow water intrusion- At the 6/11 inspection the gaps were corrected however the corrections were not painted. This item is not in compliance at the time of inspection

. . .

6- Painted over label on apartment bathroom door- The label had been removed at the June 11 inspection but the touch up at the location was poor. This item is not in compliance at the time of the inspection.

7- Apartment B closet not painted- The closet got painted however the ceiling is white when the rest of closet lids are the wall color. This item is not in compliance at the time of the inspection.

. . .

15- Roof nail in house fascia, north side- The nail has been removed however bare wood was left and needs stained. This item was not in compliance at the time of inspection.

. . .

19- painted over label at bathroom door in B. The label has removed but the touch up at the location had runs. This item was not in compliance at the time of inspection.

. . .

23- Mortar splash on pavers between the buildings- The mortar drops have not been cleaned off. This item was not in compliance at the time of inspection.

. . .

The following items are from the Addendum Written Directive on July 2, 2020:

Only the items requiring correction are listed here.

Item 32- Crown Molding joints in residence- Per the complainant, the respondent has not complied with this item and has not returned since the issuance of the 7/2/20 directive.

Item 40-The fence along the north property line- The respondent was initially directed to put in the 3’ non cumbustible privacy fence that was on the plan provided by the complainant.

That was not a city approved stamped plan.

I contacted the city of Prescott and they retrieved the stamped, city approved plans.

Those plans call the 3’ privacy fence “optional”. The plans do show a concrete retaining wall.

While the retaining wall is shown on the plans, the Planning and Zoning department did not and is not requiring any fencing at the north lot line.

As a result of this position, I cannot determine that a violation of ARS 32-1154.A is sustainable and the direction to install the fence is hereby rescinded and the respondent is deemed as compliant with this item.

Item 42- Trim painted the wrong color at the garage door and barn door track-Per the complainant, the respondent has not complied with this item and has not returned since the issuance of the 7/2/20 directive.

(All errors contained in the original)

Based upon these notes, the Registrar issued a Citation against Respondent on August 31, 2020, 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 September 15, 2020, Respondent filed a Written Answer to Citation and Complaint, stating, “G & L has taken all appropriate corrective action, has substantially complied with the Contract entered between the parties, and has performed the contracted work in accordance with city-approved plans an in a professional and workmanlike manner.”

A Notice of Hearing on Contested Case was issued on October 30, 2020, and a hearing was held on December 1, 2020 at the Office of Administrative Hearings.

At hearing, Mr. Dimond testified generally as to the Registrar’s involvement. He testified that while some items were completed per the directives, other issues still remained.

Mr. Dimond testified that he performed a pre-hearing inspection on November 13, 2020 and found that now all items had been completed but for Items 1, 14 and 23.

As to Item 1, Mr. Dimond testified that the painting still was not completed as to the wood behind the door hinges, sheen matching, and other touch up issues.

Next, Mr. Dimond testified that as to Item 14, while it was initially found to be in compliance, when he performed the pre-hearing inspection, it was discovered that there was not a properly sized hole for the piece at the end of the hose bib. However, Mr. Dimond acknowledged that this could not now be found to be in non-compliance as it was only discovered a couple of weeks prior to the hearing and there was no written directive for Respondent to repair the same.

In addition, Mr. Dimond testified as to Item 23, the mortar splash on the pavers between the buildings. Mr. Dimond testified that this was incomplete. However, on cross examination and upon review of Complainant’s Exhibit 8, Mr. Dimond acknowledged that the marks on the pavers could be paint splashes.

Finally, Mr. Dimond testified that the time given by the directives to make the repairs (30 days) was reasonable, and that Complainant allowed access to the property at all times prior to November 13, 2020.

Complainant offered 18 exhibits into evidence and testified on his own behalf.

Complainant testified that it was his belief that the hearing was now only about Items 1 and 23 not being completed. However, Complainant testified that while all but two items remained uncompleted, some of the repaired work was completed well after the time required by the directives.

Complainant testified that as to Item 1, the painting. Specifically, the wood behind some of the door hinges was still not painted correctly. Complainant testified that Respondent’s painter, Cris Durazo came to the house on or about September 25, 2020, to correct the painting issues. However, despite leaving blue tape at the problem areas, not all issues were corrected, and still remained incomplete, according to Complainant.

Next, Complainant testified that as to the issue raised in Item 14. He testified that he was not seeking to hold Respondent liable for that workmanship issue at this time, as he agreed with Mr. Dimond, that the issue was just discovered on November 13, 2020 during the pre-hearing inspection.

As to Item 23, Complainant testified that in his complaint he mentioned that oil stains were left by Respondent’s work trucks, and it was Mr. Dimond who pointed out the mortar issues and changed the complaint. Complainant testified however, that the pavers were still not properly clear of stains.

Respondent presented the testimony of Loretta Cutlip, who was the co-owner and office manager, and offered 10 exhibits into evidence. Ms. Cutlip testified generally that Respondent had been in business for over five years with no history of prior complaints.

Ms. Cutlip testified that she believed all items in the complaint were now remedied and Respondent should not be subjected to any discipline. However, Ms. Cutlip testified that she was unaware that Items 1 and 23 were still an issue for the hearing, and that all items from the second directive were properly repaired.

Ms. Cutlip testified that as to Item 1, she believed that this issue too had been resolved albeit tardy. Ms. Cutlip testified that the reason for the tardiness was that she believed that Complainant was going to take her up on an offer for a credit on the final payment, if Complainant arranged the painting himself. Further, Ms. Cutlip believed that all of the painting had been completed pursuant to an e-mail which Complainant sent on July 2, 2020 to Respondent.

Ms. Cutlip further testified that once she realized the painting was not completed, she and her painting sub-contractor, Cris Durazo, traveled to Complainant’s residence on August 25, 2020, to complete the same. She presented a letter from Mr. Durazo stating that Complainant’s wife had pointed out the various painting issues and that all spots were completed to satisfaction.

Ms. Cutlip testified that she became aware at the pre-hearing inspection on November 13, 2020, that there were still two door hinges that were not properly painted, but was not aware of any further painting issues with sheen matching. Ms. Cutlip testified that as to the wood staining issues which were shown in Complainant’s Exhibit 5, that some of the wood did not take to the stain which caused the difference in color.

In addition, Ms. Cutlip testified as to Item 23, the mortar spots on the pavers. Ms. Cutlip specifically testified that as of June 8, 2020, the mortar spots were repaired and that the spots as shown in Complainant’s Exhibit 8 were paint spots from when Complainant was painting. Thus it was her position that Respondent complied with Item 23 from the directive.

Administrative notice is taken of Respondent’s prior License record on December 2, 2020. Such prior License record reflects that Respondent’s License No. 296545 was first issued on March 20, 2015, and is currently active. Such prior License record also reflects that there was one open complaint, namely the present complaint, and no resolved/settled/withdrawn complaints 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 first issue which needs to be resolved is which items from the written directive were still subject to possible discipline. The Administrative Law Judge concludes that based upon the evidence, Items 1 and 23 were still at issue and were proper to be heard at the hearing. Mr. Dimond’s Compliance Jobsite Inspection Notes dated August 25, 2020, specifically indicated that it was both a compliance inspection from the original directive and the Addendum inspection. Thus, as of August 25, 2020, items 1 and 23 were still not corrected, and thus were proper issues for the hearing.

While there were a multitude of items requiring correcting, most had been completed by the time of the hearing. Respondent was not disputing that there were workmanship violations as to those items. As to Item 1, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Per the testimony of Mr. Dimond, Complainant and Ms. Cutlip, there were at least two door hinges which were still not painted correctly. As to Item 23, the Administrative Law Judge finds that Mr. Dimond testified credibly as to the mortar splashes. 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, and is subject to discipline for the same.

A.R.S. § 32-1154(A)(22) holds in pertinent part, “[f]ailure 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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.”

The Administrative Law Judge concludes that all but two items were corrected, and while some may have been tardy, they were nonetheless completed/repaired to Complainant’s satisfaction. However, as to Item 1, it is clear from the evidence that all of the painting was not completed despite the Respondent’s best efforts. The evidence was clear that Complainant allowed more than ample time to complete all of the painting issues yet, it is unclear why at least two door hinge areas remain unpainted. Further, the Administrative Law Judge does not find Ms. Cutlip’s testimony persuasive regarding the July 2, 2020, e-mail from Complainant. The painting to which Complainant was referring had to do with the areas where the drywall was repaired only, not the door hinge areas and the like. Therefore, there was no valid justification for failing to complete the remedial action. Thus, the Administrative Law Judge concludes that there has been a violation of A.R.S. § 32-1154(A)(22).

As to Item 23, the mortar splashes on the pavers, the Administrative Law Judge concludes that there was no evidence presented that the splashes in Complainant’s Exhibit 8 were mortar splashes. Further, Complainant testified that his original complaint was for oil marks left on the pavers not mortar splashes. There was no persuasive evidence presented that the spots left on the pavers were mortar or even if they were paint, that they were cause by Respondent during the repairs. Thus, the Administrative Law Judge concludes that Item 23 was properly repaired and there was no violation of A.R.S. § 32-1154(A)(22) for this item.

While these issues may seem minor to Respondent in a project that cost over a half of a million dollars, the evidence demonstrated that while a vast majority of the workmanship issues were repaired, most were not completed within the directive timeline.

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. 296545 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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 40 days from the date of that certification.

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Done this day, December 8, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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