ALJDEC decisions subject to certification as final

2020A-01454-CHC-ROC · Registrar of Contractors · 2020-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeanie Lynne Shurwin,

COMPLAINANT

Rigid Masonry Inc.,

License No. ROC 269438,

RESPONDENT

No. 2020A-01454-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 4, 2020

APPEARANCES: Complainant Jeanie Lynne Shurwin appeared on her own behalf. Travis Zinner, Owner and Qualifying Party, appeared on behalf of Respondent Rigid Masonry Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Rigid Masonry Inc. (Respondent) is the holder of License No. 269438 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 22, 2019, Jeanie Lynne Shurwin (Complainant) signed a contract with Respondent for the construction of a block wall. The contract for the project did not include the estimated date of completion of all work to be performed under the contract or a statement that the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

On or about March 24, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. On or about May 4, 2020, after a jobsite inspection, Investigator Cruz 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 May 20, 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:

Complaint Item 1: Mortar doesn't match block. Block is earth tone and mortar was suppose to be brown to match block

Investigator’s Observation: Noticeable difference in color of grout noted (brown and purple/lavender) throughout the two step down sections and other areas of the CMU fence going from north (N) to south (S). Respondent did admit to such and stated that when mud was being applied and dried color was evident. Respondent took two samples of mud from one bag and brown (premixed) and discovered bad set up with mortar and halted what they had on site, reordered brown premixed and ground out mortar joints and was communicated to supplier. Supplier is commutating with manufacturer but as of this date no progress. Areas of ground out grout out grout and re-jointed and although does not match existing unground joints and are noticeably different and deeper as well as significant areas of mortar stains on edges of block, and mortar on block throughout installed fence, and in the process of grinding out joints some damage to corners of block appeared, and also areas of missed grout noted. Respondent stated that they ground out joints all the way to the to the corner of the south (S) wall. Respondent stated that was always willing to correct, but cannot proceed forward until suppliers see all that has occurred and come up with a solution.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-108, work not performed in accordance with professional industry standards. Although issue with grout color may be viewed as a potential manufactures issue, the contractor assumed responsibility upon efforts to grind out mortar joints.

Complaint Item 2: Mortar is bleeding down the wall

Investigator’s Observation: Mortar bleed (efflorescence) noted down the CMU wall; “The potential for efflorescence exists in all Portland cement-based products. Efflorescence is a salt that is left on the surface of concrete upon drying and is generally of only cosmetic concern in nature. It often dissipates with contact with water or the passage of time. Efflorescence that is severe, recurring, or accompanied by degradation of the concrete surface may indicate the application of excessive moisture, an elevated concentration of salts in the applied water, numerous cycles of wetting and drying and/or a more substantial presence of salts within the surrounding environment.” Respondent stated that was always willing to correct, but cannot proceed forward until suppliers see all that has occurred and come up with a solution. In the interest is good customer service, respondent agreed that the amount of efflorescence was excessive, and is willing to correct.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-108, work not performed in accordance with professional industry standards. In the interest is good customer service, respondent agreed that the amount of efflorescence was excessive, and is willing to correct.

Complaint Item 4: Several cracks in blocks

Investigator’s Observation: Noted several cracks in CMU blocks with areas with some minor step cracking. Walls, curbs, fences, etc., should be designed and built in accordance with established practices and applicable building codes in the area.

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

Complaint Item 7: Poor quality work on the finish of the mortar. Several places where mortar is smeared on face of blocks

Investigator’s Observation: Significant areas of mortar stains on edges of block, and mortar on block throughout installed fence. Respondent stated that was always willing to correct, but cannot proceed forward until suppliers see all that has occurred and come up with a solution.

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

New Block Wall Install 60'

Complaint Item 8: Wall was left unfinished. 60' Wall was to begin at the south end of existing 290' wall and taper down to end and end at 4' high. It was not finished. Left with an awkward, staggered gap in the middle of the wall. Travis and I discussed this and he agreed to close the gap as it should be. He said he would do it when they had another job in the area. I went to see him at his office 2 months later after making several attempts to text him and call him. He said he was still planning on finishing and even had the material for us set outside in his back storage lot.

Investigator’s Observation: South (S) side of fence running from east to west (W) has missing courses of block. States that when was done and pumping grout, complainant was not happy with look of such and respondent added steps as agreed. Respondent agreed at the jobsite that he agreed to come back and lay two courses of block.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-108, work not performed in accordance with professional industry standards. In the interest is good customer service, respondent agreed at the jobsite that he agreed to come back and lay two courses of block.

Following the issuance of the written directive, Investigator Cruz extended the deadline for compliance to June 3, 2020.

On or about May 27, 2020, Complainant emailed Mr. Zinner the following:

I received a call from Investigator Beau Cruz last week, May 21st, telling me that he extended your date to 6/3/20. He said you would be sending me an email with your solution to our wall.

I have not received that from you yet. Do you know when I can expect that please?

On or about May 27, 2020, Mr. Zinner responded to Complainant the following:

Yes we just barely got confirmation from our suppliers to help with this. We would like to to obviously still do the additional courses on the south side walls. And instead of fighting the discoloration in mortar and in the black we would like to offer to do a 2 coat stucco only on the entire length of the wall, dome or flat top cap stucco and stucco on inside only. Outside face of walls will be left as is. Please let me know what your thoughts are.

All errors in original.

After emails back and forth on May 27, 2020; May 29, 2020; June 1, 2020; June 4, 2020; and June 10, 2020, the parties appeared to reach an agreement that Respondent meet with Complainant on June 7, 2020, “to sign contract, pick texture and color.”

On or about June 29, 2020, Mr. Zinner emailed Complainant as follows:

Its definitely been a Monday. Our lead foreman that is scheduled to do your job tomorrow is sick, and unfortunately has the symptoms of Covid. We have him being tested this morning and the crew self isolating until we get further news. This will push your schedule a little bit. Lets tentatively plan for Tues July 7th.

Upon receipt of Mr. Zinner’s email, Complainant contacted Investigator Cruz regarding her options. On June 30, 2020, 27 days after the deadline in the directive expired, Investigator Cruz was notified no corrective work had been performed.

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.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Cruz testified as to his involvement in this matter.

Complainant testified as to the timeline of events.

Mr. Zinner acknowledged that the wall needed to be corrected and indicated he was willing to perform the corrective work. Mr. Zinner asserted that had his foreman not exhibited symptoms of COVID-19, Respondent would have completed the work as agreed.

Administrative notice is taken of Respondent’s prior License record on September 23, 2020. Such prior License record reflects that Respondent’s License No. 269438 was first issued on November 18, 2010, and is active. Such prior License record also reflects that there were two open complaints, one resolved/settled complaint, and one complaint 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 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 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.

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the written directive being issued and prior to the 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. 269438 for a period of five 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.

-54864001

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

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000