ALJDEC decisions subject to certification as final

2020A-02132-CHC-ROC · Registrar of Contractors · 2021-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Burt, Veronica Williams, and Bernard Williams,

COMPLAINANTS

Marly Foglesong Contracting, LLC

License No. 318696,

RESPONDENT

No. 2020A-02132-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 28, 2020, with further hearing on March 10, 2021

APPEARANCES:

October 28, 2020 appearances: Complainants James Burt, Veronica Williams, and Bernard Williams appeared on their own behalf. Matthew Pierce, Esq. represented Respondent Marly Foglesong, Contracting, LLC. Marly Foglesong was present. Registrar of Contractors Investigator Chris Fultz was present.

March 10, 2021 appearances: Complainants Veronica Williams and Bernard Williams appeared on their own behalf. Marley Foglesong appeared on behalf of Respondent Marly Foglesong, Contracting, LLC (Attorney Matthew Pierce had previously withdrawn as counsel for Respondent Marly Foglesong, Contracting, LLC). Witnesses Tony Agelascos and Ivan Dominguez were present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Marly Foglesong Contracting, LLC (“Respondent”) is the holder of License No. 318696 issued by the Arizona Registrar of Contractors (“Registrar”). Marly Foglesong is the qualifying party for and a member of Respondent.

In February 2020, homeowners Veronica and Bernard Williams contracted with Respondent for Respondent to perform remodel work at the Williams’ home. Mr. Foglesong is a neighbor of the Williams.

Registrar Investigator Chris Fultz explained at hearing that James Burt, a relative of the Williams, filed the initial Complaint in this matter alleging poor work. However, the Complaint was closed shortly thereafter due to ongoing work on the project.

In June 2020, Ms. Williams contacted the Registrar to request that the Complaint be re-opened and that she and her husband be added as Complainants. Investigator Fultz attempted to include Veronica and Bernard Williams as named Complainants, however, due to a glitch in a computer program that auto-populates, the intended change to add the Williams, did not occur. Investigator Fultz testified that he has dealt with the Williams throughout the Complaint process. The Williams requested that the caption be amended to include them as named Complainants. The Administrative Law Judge granted that request over Respondent’s objection.

The April 28, 2020 Complaint received by the Registrar against Respondent alleged poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Chris Fultz. A jobsite inspection was scheduled for June 30, 2020. Respondent did not attend the jobsite inspection due to a “breakdown in the relationship.” After the jobsite inspection, on July 15, 2020, Investigator Fultz 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 August 12th, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Windows are not centered, causing edges to be behind the drywall.

Investigator’s Observation: All of the new windows installed were not installed properly, It appears there has been some structural damage caused. This will need to be corrected by Appropriate means.

Compliance Item: 2 - All of the doors were hung improperly leaving short

jambs or causing doors to not shut properly.

Investigator’s Observation: There are several issue with the doors installation both front and back doors to the home . This will need to be

corrected by Appropriate means.

Compliance Item: 4 - The ceramic tile is extremely uneven throughout the

house

Investigator’s Observation: Numerous locations of lippage through the

home. This will need to be corrected by Appropriate means

Compliance Item: 5 - Drywall was poorly and improperly patched.

Investigator’s Observation: Patches are visible. This will need to be

corrected by Appropriate means

Compliance Item: 6 - No casing installed

Investigator’s Observation: The front door has not been finished. This

will need to be corrected by Appropriate means

Compliance Item: 7 - No baseboard installed

Investigator’s Observation: The base boards were instilled prior to the

inspection, The painting needs to be finished. This will need to be corrected by Appropriate means

Compliance Item: 9 - Work started in every room, but not a single room has been finished.

Investigator’s Observation: There are projects to complete throughout

the home. Including drywall repair around a light switch located in one of the two front bedroom. As well as an electrical issue with the hallway light and the 3 way function isn't working.

Compliance Item: 11 - Damage to master bedroom window, after it was

“completed”, by worker doing stucco work.

Investigator’s Observation: This window ruling also falls under the

issues listed in item number 1.

All errors in original.

Following the issuance of the Written Directive, Respondent performed some of the work required by the Written Directive. On the day prior to the expiration of the Written Directive, the Williams (“Complainants”) notified Investigator Fultz that the two items remaining at issue were the tile and windows.

On August 19, 2020, Investigator Fultz conducted a Compliance Inspection. On August 21, 2020, Investigator Fultz issued his Compliance Jobsite Inspection Notes which set forth the following in pertinent part:

The Contractor started work on the 30 day directive with roughly a week and half left in the time frame. A 30 day directive was issued over the standard 15 day directive due to the Covid-19.

Two items were not completed per the directive.

Compliance Findings:

Compliance Item: 1 - Windows are not centered, causing edges to be behind the drywall.

Investigator’s Observation: Repairs were made, but concerns of the structure issues are still an issue. The windows in the kitchen/dining area still bind and do not operate properly.

Compliance Item: 2 - All of the doors were hung improperly leaving short

jambs or causing doors to not shut properly.

Investigator’s Observation: Item completed to minimum standards.

Compliance Item: 4 - The ceramic tile is extremely uneven throughout the

house

Investigator’s Observation: Contractor started work on the 30 day directive with only about a week and half left in the completion time. He failed to use the 30 days to his advantage and did not have the tile needed to complete in time.

Compliance Item: 5 - Drywall was poorly and improperly patched.

Investigator’s Observation: Item completed to minimum standards.

Compliance Item: 6 - No casing installed

Investigator’s Observation: Item completed to minimum standards.

Compliance Item: 7 - No baseboard installed

Investigator’s Observation: Item completed to minimum standards.

Compliance Item: 9 - Work started in every room, but not a single room has been finished.

Investigator’s Observation: There are projects to complete throughout the

home. Including drywall repair around a light switch located in one of the two front bedroom. As well as an electrical issue with the hallway light and the 3 way function isn't working. The shower in the guest bathroom leaks and is not useable. Item completed to minimum standards.

Compliance Item: 11 - Damage to master bedroom window, after it was

“completed”, by worker doing stucco work.

Investigator’s Observation: This window ruling also falls under the issues listed in item number 1.

Investigator Fultz forwarded the Complaint to the Registrar’s Legal Department.

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); and A.R.S. § 32-1154(A)(22).

Investigator Fultz testified that Respondent waited until toward the end of the thirty day period specified in the Written Directive to perform the required work and was waiting on the tile to be shipped. Therefore, the work ordered to be performed pursuant to the Written Directive pertaining to the tile, was not completed. Investigator Fultz further testified that the work in regard to the windows was complete, however three windows, two in the kitchen and one in the primary bedroom, catch and jam when opening and closing, and therefore, do not function properly. Consequently, this work was not in compliance with the Written Directive.

Ms. Williams testified that there is tile lippage throughout the house. Ms. Williams testified that four flooring contractors inspected the work that was performed by Respondent, and all four advised Complainants that the issues were too extensive to be repaired, but rather, the tile would need to be removed and replaced. Ms. Williams further testified that the instructions for installation contained with the tile, recommended that the tile be installed in one of two patterns, and Respondent installed the tile in a pattern contrary to the recommended patterns. See Complainants’ Exhibit 11.

Mr. Foglesong testified that he performed the work on the job to the best of his ability and that he agreed to contract with Complainants in order to improve his strained relationship with them. Mr. Foglesong testified that the floors in Complainants’ home are uneven and that the tile only needs to be repaired, not replaced. Mr. Foglesong asserted that his tile installer laid out several patterns for Mr. Williams and that it was Mr. Williams who chose the pattern.

Tony Agelascos, a flooring contractor who testified on behalf of Respondent, testified that the tile that was installed has a 1/8 inch bow, rendering the tile either concave or convex. Mr. Agelascos opined that the flooring cannot be repaired as it exists, as there would continue to be lippage throughout the floor due to the bowing of the tile. Mr. Agelascos testified that laying the tile in a different pattern would have helped the situation, however, the shipment of tile should have been returned. Mr. Agelascos testified that the contractor who installed the tile should have brought the issue to Complainants’ attention. Mr. Agelascos testified that the flooring contractor hired by Respondent should have realized the problem with the tile after installing a very small portion of the tile.

Ivan Dominguez, Respondent’s tile installer, testified that he showed Complainants several patterns from which to choose for the tile installation, and that the tile was not straight, but rather curved as it is a rustic type of tile.

Administrative notice is taken of Respondent’s prior License record on March 15, 2021. Such prior License record reflects that Respondent’s License No. 318696 was first issued on April 5, 2018, and is active. Such prior License record also reflects that there are no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

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

Complainants bear 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 party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code 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). A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. section 32-1154(A) provides the following:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure 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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code R49108(a) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The credible, substantial, and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants 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(a).

The credible, substantial, and probative evidence of record further established that Respondent did not compete the corrective work following the Written Directive being issued. Therefore, Complainants 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. 318696 for a period of three (3) 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 40 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, March 18, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000