ALJDEC decisions subject to certification as final

2020A-01847-CHC-ROC · Registrar of Contractors · 2020-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph F. Brecker,

COMPLAINANT

K2A Construction, Inc.,

License No. ROC 310253,

RESPONDENT

No. 2020A-01847-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 31, 2020

APPEARANCES: Complainant Joseph F. Brecker appeared on his own behalf. Registrar of Contractors Investigator Cliff Corlett appeared. Respondent K2A Construction, Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. K2A Construction, Inc. (Respondent) is the holder of License No. 310253 issued by the Arizona Registrar of Contractors (Registrar).

2. Joseph F. Brecker (Complainant) was awarded a Mohave County Rehab grant for his residence. The Rehab project included the following: i) new roof; ii) new HVAC; iii) installation of a closet; iv) new electrical 200A service; v) new windows; vi) new flooring in the kitchen and bathrooms; vii) new appliances; viii) new water heater; ix) complete remodel of the master bathroom, including the plumbing, and replacing of fixtures and all plumbing in the hall bathroom; x) replacement of door hardware throughout the home; xi) releveling of the sewer plumbing under the home; and xii) work on the fireplace.

3. Respondent was awarded the project and performed work at Complainant’s residence.

4. On or about April 13, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

5. The Registrar assigned the Complaint to Investigator Cliff Corlett.

6. On April 21, 2020, Investigator Corlett received an email from Respondent that stated:

Although the claims are of no merit. [sic] Due to poor economy as a result of the COVID-19 virus, as well as struggling in business, K2A [C]onstruction has decided to close. I have canceled all of my licenses and am dissolving K2A. I will not be participating in the inspection.

7. After a jobsite inspection, Investigator Corlett 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 or before June 1, 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 reasons1, 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: 1 - Roof leaking all over. Back wall, ceiling and roof

penetrations. Leaking between the roof and awnings, front and back.

Investigators Observation: Water stains and Complainants photos indicate there are or have been numerous water leaks, both the roof and awnings. There were

numerous prior "repairs" observed consisting of dabs of roof mastic and spray on

water sealant. Neither of these are acceptable methods to control leaks on a new

roofing installation.

Respondent should determine cause and correct all roof leaks and water damage by appropriate methods.

. . . .

Compliance Item: 2 - Water heater. Installed without pan or drain in interior room.

Investigators Observation: International Residential Code (IRC) section P2801.5 & P2801.5.1 requires a galvanized pan and drain.

Respondent should correct by appropriate methods.

. . . .

Compliance Item: 3 - Electrical - work not performed by licensed contractor. Needs to be checked.

Investigators Observation: This project was issued a Mohave County permit, 2019-00456. That permit was signed off 6-18-19, however there was a improperly cut down seal tight fitting observed on an exterior electrical box and galvanized flex conduit improperly installed in an exterior location.

Respondent should correct by appropriate methods, using only properly licensed electrical contractors.

. . . .

Compliance Item: 4 - Windows leaking.

Investigators Observation: Water stains and Complainants photos indicate there are or have been numerous water leaks, both the roof and awnings. There were numerous prior "repairs" observed consisting of dabs of roof mastic and spray on water sealant. Neither of these are acceptable methods to control leaks on a new roofing installation.

Respondent should determine cause and correct all roof leaks and water damage by appropriate methods.

. . . .

Compliance Item: 5 - Flooring uneven due to sub-floor. Plank flooring will not stay locked in both the kitchen and bathroom.

Investigators Observation: When an inadequate or defective substrate is present prior to installation, the General Contractor and or the owner should be notified in writing by the contractor that a specific surface is unacceptable for installation. Both the kitchen floor and master bath floor had noticeable unevenness.

Respondent should determine cause and correct by appropriate methods.

. . . .

Compliance Item: 6 - Master bathroom. Installed 10-inch Solar Tube instead of 14- inch.

Investigators Observation: Mohave County Rehab "Scope of Work" for rehab project 19R07 specified, "Install 14-inch solar tube lighting". Respondent installed a 10-inch Solar Tube.

Respondent should properly provide and install the specified size Solar Tube.

Governing Rule: Continuing a new single family residential construction project with actual knowledge that a pretreatment wood-destroying pests or organisms application was: (a) Not performed at the required location.

Compliance Item: 7 - Hall bath. No access panel in bedroom closet.

Investigators Observation: The rehab scope of work stated, "Install access panel in closet behind shower. Respondent cut out an existing section of wall panel and replaced the same cutout panel with several exposed screws. Screw placement is not uniform and cut panel has damage and or jagged edges.

Respondent should properly rework the "access panel" to achieve a more uniform and acceptable appearance.

. . . .

Compliance Item: 8 - Plumbing. Angle stops and supply lines for washer not replaced.

Investigators Observation: Washer hot/cold supply valves are not generally considered "angle stops". Washing machine hot/cold hoses are not generally considered the same as fixed appliance (sink, toilet) supply lines.

No contractor action required.

. . . .

Compliance Item: 9 - Last call to contractor was, "I did what I got paid for. Call your insurance company".

Investigators Observation: This is a statement and not a specific workmanship allegation.

8. After the deadline in the Written Directive expired, Investigator Corlett was notified that no corrective work had been performed. Investigator Corlett testified at hearing that Respondent inactivated its license on April 22, 2020, and therefore, at the time of the issuance of the Written Directive, Respondent was not able to perform any corrective work, but could have hired properly license contractors to do so, or could have resolved the matter financially with Complainant.

9. 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).

10. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

11. The Registrar issued a Notice of Hearing, setting a hearing at 8:30 a.m. on July 31, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. An Order converting the hearing to video-conference or telephonic was also issued to Respondent at its address and email address of record.

12. A hearing was held on July 31, 2020. Complainant testified on his own behalf.

13. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

14. No corrective work was done, therefore, neither a compliance inspection nor a prehearing inspection were conducted. Investigator Corlett testified consistently with the findings contained in his jobsite inspection notes and the Written Directive.

15. Complainant testified that Respondent submitted the lowest bid to the County for the scope of work, and therefore, the County accepted Respondent’s bid. Complainant further testified that the leaks continue in his home, that the home is “destroyed” because of the mold caused by the leaks, the roof is “gone,” and the underground cables are not underground.

16. Administrative notice is taken of Respondent’s prior License record on August 4, 2020. Such prior License record reflects that Respondent’s License No. 310253 was first issued on December 2, 2016, and was canceled effective April 21, 2020. Such prior License record also reflects that there was one prior complaint that was resolved.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. 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).

3. 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.

4. The evidence established that Respondent did not attempt to complete the corrective work following the Written Directive being issued. 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).

5. Respondent’s canceled license does not deprive Complainant of his right to prosecute his Complaint or prevent the Registrar from determining the merits of the Complaint. See A.R.S. § 32-1154(D).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 310253.

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 40 days from the date of that certification.

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-137160-45720000Done this day, August 4, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000