ALJDEC decisions subject to certification as final

2020A-02530-CHC-ROC · Registrar of Contractors · 2020-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Walter Jared Miller,

COMPLAINANT

RLS Endeavors LLC,

DBA: Artitexture,

License No. ROC 283508, 294780, 304121,

RESPONDENT

No. 2020A-02530-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2020

APPEARANCES: Complainant Walter Jared Miller appeared on his own behalf via Google Meet. Larami Sandlin appeared via Google Meet on behalf of Respondent RLS Endeavors, LLC and was represented by Matt Anderson, Esq. appearing via Google Meet. Steve Philpott, Investigator for the Registrar of Contractors appeared via Google Meet

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

RLS Endeavors LLC, (Respondent) is the holder of License Nos. 283508, 294780 and 304121 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 30, 2020, Walter Jared Miller (Complainant) signed a contract with Respondent to remodel his kitchen, master bedroom and bathroom.

On or about May 21, 2020, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Philpott. The jobsite inspection was performed on June 11, 2020.

Investigator Philpott then issued a Written Directive on or about June 12, 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 July 13, 2020.

. . .

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

Compliance Item: 1 - 1. estimated completion date of april 20, 2020, to this

date no revised completion date given. multiple, documented examples of contractor neglecting work site, poor scheduling skills (i.e. necessary work not completed before subcontractors come to do work). not ordering agreed upon accessories (i.e. Cabinet hardware/ tile/ etc) in timely manner. Pulling workers off job to go work at other, non related business. Not showing up to meetings on time, or even at all. Not bringing over supplies/ accessories on agreed upon time (i.e Mini fridge, counter top/ tile/ grout samples, etc)

Investigator’s Observation: This complaint item is verified. It is not uncommon for unforeseen conditions to occur in the construction industry. The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 3 - 3. not obtaining permits. Contractor states that homeowner agreed to complete work without permits, because "the city of flagstaff was closed due to Covid", which is an outright lie ( I have documentation of this). City never stopped issuing permits, i was never consulted about working with out permits, and we had numerous verbal conversations about obtaining permits. if you note the amount paid to contractor, you will notice that the amount paid is over the contract price. I was verbally told that this money was for things such as plans, renderings and permits.

Investigator’s Observation: Permits for this project were not obtained as required by the City of Flagstaff Building Departments. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed Completed project must comply with original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award A. 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: 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the registrar. RULE 4-9-108 WORKMANSHIP STANDARDS Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the complete work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 8 - Addendum #1. Removal of TWO load bearing walls without proper support installed. Contractor informed us that the walls were not load bearing and recommended we remove them for the purpose of remodel. Structural engineer has come by and assured us that the walls were load bearing. Attachments include a letter (5/27/2020) from the Structural engineer stating the walls removed were load bearing. Also an email from the contractor (1/12/2020) "We both think that the wall around the kitchen is not load bearing due to its location and the roof framing" ("we" meaning her and her partner Ryan). days after this email, her partner Ryan got up in the attic to assess the situation and assured me that the walls were not load bearing. Witness Sarah Smallwood can verify this. Also attached is a photo showing what walls were removed (designated by red Xs)

Investigator’s Observation: Permits for this project were not obtained as required by the City of Flagstaff Building Departments. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed. Completed project must comply with original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 9 - Addendum #2. New window in bathroom installed in a different spot than the plans indicate. This is a problem for aesthetic reasons (window sticks into show approx 4 inches), as well as for code reasons (per code window that protrudes into shower must be tempered glass.)

Investigator’s Observation: Permits for this project were not obtained as required by the City of Flagstaff Building Departments. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected. All required inspections shall be scheduled and passed. Completed project must comply with original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

All errors contained in original.

On or about July 21, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

At the commencement of the hearing, Complainant’s Exhibits 1 through 44 were admitted into evidence and Respondent’s Exhibits A through SS were admitted into evidence.

At hearing, Investigator Philpott testified that this was mostly a permitting issue as Respondent failed to obtain the same.

Mr. Philpott did acknowledge that the thirty day timeline in the written directive was marginal to obtain the permit, but that it was Respondent’s responsibility to obtain the same prior to commencing work.

Mr. Philpott testified that Respondent should not have commenced work without the full plans and obtaining the proper permit as the contractor is the professional in the relationship.

Walter Jared Miller testified that he wanted the project done the right way, which included the proper permits. In support of this, in an e-mail conversation from Larami Sandlin, permits were discussed as early as January 2, 2020. Thus, it was his belief that all of the proper permits would be obtained prior to commencing work.

Mr. Miller testified that the work commenced but soon after issues arose. Mr. Miller was in contact with a City of Flagstaff building inspector who inspected the work up until that point. On May 26, 2020 a stop-work order was posted at the residence due to the lack of a permit.

Mr. Miller testified that after the written directive was issued, he had to initiate contact with Respondent to determine if compliance was possible.

In addition, Mr. Miller testified that he was not agreeable to extend the timeline on the written directive because Respondent was requesting additional funds (approximately $10,000.00), to complete the project.

With regard to change orders, Mr. Miller testified that there were never any change orders because to do so he would have incurred a $75.00 fee per the terms of the contract, and he never paid such a fee.

Upon cross-examination, Mr. Miller testified that he agreed that the project would be split up into two phases, the first being the bathroom and kitchen and then the bedroom.

When questioned about the February 25, 2020, meeting over “pizza and beer”, Mr. Miller denied that he authorized the work to start without the permit.

During Mr. Miller’s “re-direct” testimony, he testified that he has paid in full for the work completed. He further testified that on August 24, 2020, a permit was issued, however, he now is going to use a different contractor to complete the project.

Complainant next had Sarah Smallwood testify. Ms. Smallwood was the live-in girlfriend of Complainant. She testified that the Sandlin’s were their friends. She further testified that permits were discussed via text messages and that she expected that Respondent was to obtain the same or provide Complainant with the opportunity to do so themselves.

Ms. Smallwood also testified that she and Complainant never agreed to start the project without permits and would never have any work done without a permit.

When questioned about if she and Complainant caused any delays, Ms. Smallwood testified that she did not know that she and Complainant needed to make decisions until the Respondent asked.

Ms. Smallwood also testified that workers on the job would often leave the project to go work on other projects without explanation.

Finally, Ms. Smallwood testified that because of the removal of the load bearing wall, she was afraid that the roof was going to cave in if there was a heavy snow.

Larami Sandlin testified on behalf of Respondent. Ms. Sandlin testified that Respondent was first licensed in 2013 and have only had one complaint (2019), since they have been in business.

Ms. Sandlin testified that she and Complainant were friends and had originally discussed remodeling his home four years ago. Ms. Sandlin also testified that she agreed to the project to help a friend and not make money.

Ms. Sandlin testified that it was Complainant that decided to split the project into two phases after the contract was signed.

Ms. Sandlin testified that she fully intended to obtain a permit when it was her understanding that all three rooms were going to be done at once. However, when Complainant changed his mind and pushed it to two different phases, she was going to wait to obtain the permit until Complainant was ready to start on the bedroom, as they would need to wait on the final dimensions for the same in order to obtain the permit.

Further, as to the permit, Ms. Sandlin testified that obtaining a single permit would have saved both time and money and that there was a verbal agreement to commence work without the permit.

Ms. Sandlin testified that within two weeks of commencing on the project, Complainant started changing items. She testified that Complainant made these requests via text, e-mail, or even in person. Ms. Sandlin testified that Complainant was very indecisive but she also felt micro-managed by him.

Ms. Sandlin testified that she took the written directive seriously, but there was not enough time allowed to get a structural engineer. Ms. Sandlin testified that she was also concerned about possible delays on permitting due to COVID-19.

Ms. Sandlin testified that on July 13, 2020, she sent an e-mail to Investigator Philpott explaining the difficulties she was having in complying with the directive.

Next, Ryan Sandlin testified. Mr. Sandlin testified generally that they were not doing any work outside of what Complainant wanted, and that during the “pizza and beer” meeting it was discussed commencing the work without a permit.

With regard to the removal of the load bearing wall, Ms. Sandlin testified that while he was not a structural engineer, he used his best sight judgment and ended up being incorrect.

Administrative notice is taken of Respondent’s prior License record on October 30, 2020. Such prior License record reflects that Respondent’s License No. 283508 was first issued on March 3, 2013, and is active. Such prior License record also reflects that there is one open complaint, namely the one at issue.

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 the Respondent failed to obtain the necessary permit prior to commencing the work. While it is unclear if Complainant directed Respondent to commence work without the permit, the responsibility still falls on Respondent. As mentioned numerous times by Complainant and Ms. Smallwood, they believed that Sandlin’s were the professionals and should have made sure a permit was obtained prior to commencing work. Further, the wall that was removed was load bearing and this was in violation of the building code. These issues constitute violations A.R.S. § 32-1154(A)(2)(a) and (b).

The evidence also showed that the work was not completed by the estimated date of April 20, 2020, and the initial work was not in conformity with the Registrar’s standards. Also, the items in the written directive were not timely completed. Therefore, Complainant established that Respondent failed to complete the initial work in a workmanlike manner thus constituting violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and 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. 283508 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.

Done this day, November 3, 2020.

/s/ Adam D. Stone

dministrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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