ALJDEC decisions subject to certification as final

2020A-03184-CHC-ROC · Registrar of Contractors · 2020-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffery Wade Smith,

COMPLAINANT

H Clark Construction LLC,

DBA: Harry Clark,

License No. ROC 176229,

RESPONDENT

No. 2020A-03184-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 9, 2020

APPEARANCES: Complainant Jeffery Wade Smith appeared on his own behalf. Harry Clark, Owner and Qualifying Party, appeared on behalf of Respondent H Clark Construction LLC doing business as Harry Clark and was represented by Erika L. Johnsen.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

H Clark Construction LLC doing business as Harry Clark (Respondent) is the holder of License No. 176229 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 27, 2017, Jeffery Wade Smith (Complainant) signed a contract with Respondent for a remodeling project. The contract did not include the date the parties entered into the agreement, the estimated date of completion of all work to be performed under the contract, the dollar amount of any advance deposit paid or scheduled to be paid by the owner, the dollar amount of any progress payment and the stage of construction at which the contractor would be entitled to collect progress payments during the course of construction under the contract, or a statement that the owner had the right to file a complaint with the Registrar.

Following the completion of the project, Respondent performed repair work on the tile flooring in 2019, specifically in the primary bathroom, the guest bathroom, and the living room.

On or about July 1, 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 John Smith.

On or about July 2, 2020, Investigator Smith issued a Warning Letter to Respondent indicating that Respondent’s contract was missing at least one of the elements of a contract required by A.R.S. § 32-1158(A).

On or about July 20, 2020, Investigator Smith performed a jobsite inspection.

On or about July 21, 2020, Investigator Smith 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 6, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1A: “...they used the wrong color grout for repairs... all repairs are failing, tiles still popping loose and lossing the grout...”

Complaint Item 1A specifically addresses tiled areas in the master bedroom, the guest bathroom, and in the living room near the complainant’s piano.

Investigator’s Observation: Verified: there are loose tiles, chipping grout, and missing grout. The respondent acknowledged working on these areas within the last two years.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

On or about July 22, 2020, Complainant sent a certified letter and email to Respondent stating as follows: “Solutions I am willing to except [sic] are as follows. Remove the existing failing flooring and reinstall with concrete board or float floor or full refund of the initial cost and re-grout existing locations throughout the home that are failing.”

On or about July 22, 2020, Mr. Clark emailed Complainant requesting dates of availability during the week of July 27, 2020, through July 31, 2020, to enter the property and complete the repairs identified in the directive. Complainant replied that he was available any day that week between the hours of 8:00 a.m. and 4:00 p.m.

The parties agreed that Respondent would complete the corrective work on July 29, 2020, and the work was done on that date.

On or about August 12, 2020, Investigator Smith performed a compliance jobsite inspection. During the inspection, Investigator Smith noted chipping and cracking grout and voids in the grout leaving the edges of the tile exposed in the areas of the flooring that Respondent repaired approximately two weeks prior.

Following the compliance inspection, Respondent reached out to Complainant in an effort to perform additional compliance work. Complainant demanded that Respondent remove all the tile flooring, install HardieBacker board, and reinstall the tile flooring. Respondent did not agree to Complainant’s terms.

On or about August 17, 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(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Complainant testified that he started experiencing problems with the flooring approximately two months after he moved into the home. Complainant also reported that he provided Respondent with access to the property prior to the deadline set forth in the directive and allowed Respondent to perform the corrective work. Complainant stated that he obtained a quote from other contractors as to what it would require to correct the tile issue.

Mr. Clark testified that Complainant was offered HardieBacker board for the project prior to it starting, but Complainant refused the additional $9,000.00 charge that would have been required. Mr. Clark indicated that after the corrective work was completed, he did not hear from Complainant again regarding any issues with the grout. Mr. Clark sated that after the compliance inspection, he attempted to schedule further repairs, but Complainant would not allow Respondent to do more. Respondent insinuated that Complainant may have sabotaged the corrective work after it was completed. Mr. Clark testified that Respondent has since amended its form contract to include the required elements of a contract.

Administrative notice is taken of Respondent’s prior License record on November 30, 2020. Such prior License record reflects that Respondent’s License No. 176229 was first issued on August 1, 2002, and is active. Such prior License record also reflects that there were no other open complaints 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 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 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).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent attempted complete the corrective work, but the corrected grout failed. Respondent’s assertion that Complainant tampered with the corrective work was without any supportive evidence. Further, following the expiration of the deadline in the directive, Complainant was under no obligation to allow Respondent access to the property to attempt further corrective work. 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. 176229 for a period of three 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended Respondent’s License No. 315479 shall be suspended based on its violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A) until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(A).

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

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-137160-45720000Done this day, November 30, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000