ALJDEC decisions subject to certification as final

2020A-02644-CHC-ROC · Registrar of Contractors · 2020-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anne M. Fountain,

COMPLAINANT

Symmetry Builders Inc.,

License No. ROC 221936,

RESPONDENT

No. 2020A-02644-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2020

APPEARANCES: Complainant Anne M. Fountain appeared on her own behalf. Tim Nelson, Owner and Qualifying Party, appeared on behalf of Respondent Symmetry Builders Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Symmetry Builders Inc. (Respondent) is the holder of License No. 221936 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 16, 2019, Anne Fountain (Complainant) entered into a contract with Respondent for the construction of a pergola.

On or about May 29, 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 Wes Ellington. On or about June 23, 2020, Investigator Ellington performed a jobsite inspection and 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 July 23, 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:

Complaint Item: 1: The wood slats that make up the top of pergola have warped and twisted.

Investigator’s Observation: Several of these have twisted due to the fact that they are wood in an exposed area. The respondent stated that he discussed this possibility with the complainant, while the complainant says he did not warn her of this possibility. Due to the fact that no written contract was provided, it is unknown what was agreed on. The complainant agreed that she had specifically requested wood materials be used, but did not specify what kind of wood. Wood is a natural material and will warp, crack, and twist with climate change throughout the year.

This warping is a material failure. The ROC has no jurisdiction over the failure of materials. Further discussion revealed that the required building permit was not obtained for the work performed. Therefore, the respondent will need to obtain the required building permit and make any corrections to the structure noted by the city building inspector.

Governing Rule: Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another. (permit required)

Complaint Item: 2: The wood that is attached to my home to hold the slats in place is splitting.

Investigator’s Observation: The ledger board has cracks in several places, but this has not affected the integrity of the structure. The complainant stated that the wood was not cracked when initially installed which indicates material failure. As in item 1, the respondent stated that he discussed the possibility of cracking and warping with the complainant, while the complainant says he did not warn her of this possibility. Due to the fact that no written contract was provided, it is unknown what was agreed on. The complainant agreed that she had specifically requested wood materials be used, but did not specify what kind of wood. Wood is a natural material and will warp, crack, and twist with climate change throughout the year.

The ROC has no jurisdiction over the failure of materials. Further discussion

revealed that the required building permit was not obtained for the work performed.

Therefore, the respondent will need to obtain the required building permit and make any corrections to the structure noted by the city building inspector.

Following the issuance of the written directive, Complainant agreed to allow Respondent an extension of the deadline to obtain the permit. Respondent was to comply with the written directive by August 10, 2020.

On or about August 17, 2020, Respondent sent Complainant an invoice for $1500.00 indicating the City of Queen Creek required professional drawings before it would issue the permit.

After the deadline expired, Investigator Ellington was notified the permit had not been obtained.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(22).

Investigator Ellington testified that Complainant’s complaint was centered around a material failure, but Complainant admitted that she requested the structure be constructed with wood. Investigator Ellington noted that wood is a natural material and will warp, crack, and twist with climate change throughout the year. Investigator Ellington stated that, while the homeowner is responsible for obtaining a permit, a contractor should not perform the work until a permit has been issued.

Complainant testified that Respondent never informed her of the need for a permit. Complainant maintained that she hired a licensed contractor to avoid having any issues with the structure. Complainant stated she allowed Respondent to access the property to obtain the information necessary to obtain the permit, but she learned during her conversations with someone from the City of Queen Creek that Respondent had failed to submit the required information. Complainant questioned the validity of the invoice Respondent sent her requesting an additional $1500.00 for the professional drawings that had never been mentioned before.

Tim Nelson, Respondent’s Owner and Qualifying Party, acknowledged that no permit was issued prior to the project being completed. Mr. Nelson asserted that he was out of town on vacation when the directive was issued, so he did not contact Complainant right away. Mr. Nelson also admitted that he did not inform Complainant of the need for professional drawings until August 17, 2020, after the extended deadline expired.

Administrative notice is taken of Respondent’s prior License record on November 5, 2020. Such prior License record reflects that Respondent’s License No. 221936 was first issued on July 11, 2006, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint 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 the pergola required a permit and Respondent built the pergola without a permit being issued. Therefore, Complainant established that Respondent disregarded the building codes of the City of Queen Creek in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent did not obtain the permit 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).

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. 221936 for a period of one day.

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, November 5, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000