ALJDEC decisions subject to certification as final

2020A-02289-CHC-ROC · Registrar of Contractors · 2021-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Felicia Marie Bland,

COMPLAINANT

D R H Construction Inc.,

License Nos. ROC 113105, 256153,

RESPONDENT

No. 2020A-02289-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 19, 2021

APPEARANCES: Complainant appeared and was represented by Michael Brown and Jacinda Stephens. Respondent D R H Construction Inc. was represented by Tom Shorall and Jason Boblick.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

D R H Construction Inc. (Respondent) is the holder of License No. 113105 and 256153 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 17, 2018, Felicia Marie Bland (Complainant) signed a contract with Respondent for the construction of a new home.

On or about May 7, 2020, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Daniel Edwards.

On or about June 2, 2020, Investigator Edwards conducted a jobsite inspection.

On or about June 11, 2020, Investigator Edwards issued a written directive to Respondent that provided, in relevant part, 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 July 11, 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:

. . . .

Compliance Item: 5 - Builder sent a general contractor assistant to place caulking around the perimeter of the home. The contractor assistant told me that the caulking would sink in and wasn’t sufficient to repair the holes where stucco is missing. And that rats could definitely chew through the caulking. He stated that the stucco contractor needs to fix those holes.

Investigator’s Observation: Substantiated. The stucco trim around the front of home and in Complainant's back yard were observed to be incomplete, with numerous gaps present throughout. Foam and wire are visible underneath the stucco pop outs. The areas which have been caulked are unpainted and do not meet standards. The stucco work is incomplete and should be corrected by appropriate means.

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.

Following the issuance of the written directive, Respondent corrected all of the items included in the directive except the bottom side of the stucco pop outs. After the deadline in the directive expired, Investigator Edwards was notified some corrective work had been performed.

Investigator Edwards conducted a compliance jobsite inspection. At that time, he was able to observe the lack of corrective work on the bottom side of the stucco pop outs.

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).

At the hearing, Respondent acknowledged that Item 5 was a workmanship issue and that Respondent had failed to correct it prior to the deadline in the written directive. As Respondent admitted the violations of the charged statutes occurred, the only remaining issue to be addressed at the hearing was what discipline, if any, should be imposed.

Investigator Edwards testified as to his observations of the stucco pop outs and acknowledged that to inspect the condition, he had to lay on the ground and place his camera under the pop outs to take the photographs.

Complainant testified that after the deadline in the directive expired, she had a different company seal the house to prevent pest infestation. Complainant elected not to engage in settlement discussions with Respondent after the parties agreed that the only remaining issue was the one set forth above, that Respondent admitted the work was not done properly and had not been corrected prior to the deadline in the directive, and that Respondent expressed it was willing to pay for another contractor to perform the corrective work for Complainant.

Respondent presented the testimony of stucco contractor Al Hennigan, with Samons Bros Construction LLC, who testified that he had observed the issue on Complainant’s home, but did not consider it to be a workmanship issue. Mr. Hennigan stated that if the condition existed on his own home, he probably would not notice it and, if he did notice, he most likely would not bother to correct the issue as it would not affect the integrity of the stucco or the home in general. Mr. Hennigan estimated that it would take a couple hours to fix and would cost about $500.00.

Michael Douglas, Customer Service Manager with Respondent, testified that Respondent stood ready, willing, and able to perform the corrective work. Mr. Douglas stated that the failure to correct it prior to the deadline in the directive expiring was simply an oversight in light of the number of items to be addressed.

Administrative notice is taken of Respondent’s prior License record on May 4, 2021. Such prior License record reflects that Respondent’s License No. 113105 was first issued on April 8, 1996, and was active. Such prior License record also reflects that there were two open complaints and five prior complaints that were resolved or settled and no prior complaints resulting in discipline against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 256153 was first issued on July 8, 2009, and was active. Such prior License record also reflects that there were no 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.

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 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(A) and (B).

The evidence established that Respondent did not attempt to complete the corrective work following the 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).

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. 113105 for a period of one day.

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, May 10, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000