ALJDEC decisions subject to certification as final

2020A-02805-CHC-ROC · Registrar of Contractors · 2020-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Belinda Yvonne Metzler

COMPLAINANT

Choice Construction LLC,

DBA: J And D Homes,

License No. ROC 325368

RESPONDENT

No. 2020A-02805-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 2, 2020

APPEARANCES: Complainant Belinda Yvonne Metzler appeared on her own behalf via Google Meet. Danny Toledo appeared via Google Meet on behalf of Respondent Choice Construction LLC, and was represented by Mark Bainbridge. Wes Ellington, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Choice Construction LLC, (Respondent) is the holder of License No. 325368 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 25, 2019, Belinda Yvonne Metzler (Complainant) signed a contract with Respondent to construct a block wall around her property.

On or about June 8, 2020, the Registrar received a Complaint containing eight items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection was performed on June 30, 2020.

Investigator Ellington then issued a Written Directive on or about July 1, 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 August 3, 2020.

. . .

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

Complaint Items 1, 2, 5, and 6: 1. Block wall is not secure and may cause injury. 2. Block wall is cracking. 5. One section of wall is completely unstable and may cause injury do too falling. 6. Top rows of block wall blocks are not attached correctly and could cause possible injury if they fall.

Investigator’s Observation: While there is no evidence that the wall will fall completely, the wall is not secure in several areas due to loose block/cracked mortar joints. There are multiple areas with cracked/broken block. One area of concern has excessive “stair step” cracks in mortar joints. Cracks 1/8" or more should be filled. If cracks exceed 1/8" or if crack extends across the block itself, a structural problem may exist. Contractor should determine cause of the crack and make appropriate repairs if necessary. All cracked/broken/damaged block should be replaced. Loose block should be properly secured. These areas will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 3. Block wall missing mortar throughout entire wall completed

Investigator’s Observation: Verified. Voids in masonry mortar joints more than 1/4" will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 4. Block wall is not level and bowing with blocks pushing out of wall.

Investigator’s Observation: Verified. Masonry columns should be plumb within 1/4" and in line within 1/4". Mortar joints should be straight and plumb (within 3/16" in adjacent courses) and of uniform thickness. Walls that exceed 1/4" out of plumb, 1/2" in total length of wall, or out of level in excess of 1/4" in 8' are unacceptable. All areas exceeding these tolerances will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

All errors contained in original.

Following the issuance of the Written Directive, the repairs were made and a compliance jobsite inspection was completed on July 21, 2020. The Compliance Jobsite Inspection notes indicted as follows:

Compliance Findings:

Cracks 1/8" or more should be filled. If cracks exceed 1/8" or if crack extends across the block itself, a structural problem may exist. Contractor should determine cause of the crack and make appropriate repairs if necessary. All cracked/broken/damaged block should be replaced. Loose block should be properly secured. These areas will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-

108, Poor work not performed in accordance with professional industry standards.

Compliance Findings: While some of the issues have been repaired, others still exist or now have created new cracks and/or loose block. Many broken/cracked blocks still exist that should have been replaced. This is unacceptable and does not meet minimum workmanship standards.

Complaint Item: 3. Block wall missing mortar throughout entire wall completed

Investigator’s Observation: Verified. Voids in masonry mortar joints more than 1/4" will need to be corrected by the respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-

108, Poor work not performed in accordance with professional industry standards.

Compliance Findings: Many areas are still missing mortar more than a 1⁄4” wide. This is unacceptable and does not meet minimum workmanship standards.

Complaint Item: 4. Block wall is not level and bowing with blocks pushing out of wall.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-

108, Poor work not performed in accordance with professional industry standards.

Compliance Findings: While the large bowed area in the front has been corrected, the mortar joints throughout this project are still inconsistent in size, are not straight, were not tooled to seal/compress mortar. Many courses have uneven/crooked blocks. This is unacceptable and does not meet minimum workmanship standards.

On or about July 27, 2020, 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).

At hearing, Investigator Ellington testified that that the large bowed area in Complaint Item 4 was now corrected, however many mortar joints and cracks were still in existence throughout the wall despite Respondent’s repairs to the same.

Upon cross-examination, Investigator Ellington testified that the cracks exceeded 1/8” and mortar joints exceeded 1/4”, but did not use a measuring device to confirm that they were not within workmanship standards as upon his belief, they were obviously not in compliance.

Investigator Ellington testified that he did not provide specific areas to be repaired. He further testified that after the repairs, while there may have been additional mortar applied, areas still existed that were sloppy and additional blocks were loose.

Investigator Ellington testified that it was his belief that none of the damage to the wall was caused by horses, vehicles, or Complainant’s children.

Finally, Investigator Ellington could not point to specific areas on the walls where issues remained when questioned by Respondent’s counsel.

Ms. Metzler testified that she tried numerous times to reach out to Respondent to resolve the issue. She further testified that Mr. Toledo told her that there was an earthquake which led to the wall cracks.

Ms. Metzler also testified that she did not keep horses on the property, that no vehicles damaged the wall, nor did her children cause any damage.

Ms. Metzler testified that she was concerned with the structural integrity of the wall.

Mr. Toledo testified that was it normal for some cracks to appear due to the settling of the earth, and those cracks were not because of poor workmanship.

Mr. Toledo further testified that after the Written Directive was issued, specific areas on the walls were not pointed to out him, so it was difficult to determine which blocks, stair step cracks and mortar joints needed repairs.

In addition, Mr. Toledo testified that on July 16, 2020, he and a crew of three other workers spent approximately nine hours repairing the wall.

Finally, Mr. Toledo testified that due to the lack of specificity in the Written Directive, he inspected the entire wall and if he felt it deviated from workmanship standards, he repaired or replaced the block.

Administrative notice is taken of Respondent’s prior License record on October 4, 2020. Such prior License record reflects that Respondent’s License No. 325368 was first issued on July 12, 2019, 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 initial work was not in conformity with the Registrar’s standards with regards to the stair-step cracks, masonry and the bowing of the wall. Therefore, Complainant established that Respondent failed to complete the initial work in a workmanlike manner. However, before finding a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, Respondent should be given an opportunity to repair the work.

A.R.S. § 32-1154(A)(22) holds in pertinent part, “[f]ailure 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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.”

In this case, the evidence showed that Mr. Toledo timely requested access to the property to make the repairs. Mr. Toldeo then spent approximately nine hours repairing the wall. Upon cross-examination, Mr. Ellington could not point to specific areas in the photos he presented in his Compliance Inspection Report where Respondent still failed to meet workmanship standards after repair.

The Registrar of Contractors allows contractors the opportunity to perform corrective work. Respondent established by a preponderance of the evidence that it completed the corrective work. Therefore, Respondent cannot properly be disciplined for the 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 close as dismissed Complainant Belinda Yvonne Metzler’s complaint in Case No. 2020A-02805 against Choice Construction, LLC License No. 325368.

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, October 13, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000