ALJDEC decisions subject to certification as final

2020A-03227-CHC-ROC · Registrar of Contractors · 2021-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Linda E Campbell

COMPLAINANT,

v.

Arm & Hammer Framers Inc.

License No. 324879,

RESPONDENT.

No. 2020A-03227-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 04, 2021 at 1:30 PM.

APPEARANCES: Linda Campbell (“Complainant”) appeared with Dale Campbell as a witness. Timothy Yniguez appeared on behalf of Arm & Hammer Framers Inc. David Fagerburd appeared as a witness from the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On July 25, 2019, the Registrar issued ROC License No 324879 for general residential B contracting to Respondent. Respondent’s address of record for the license is 427 Oriole Dr. Big Bear Lake, CA 92315. Timothy Wayne Yniguez is listed on the license as Respondent’s Qualifying Party/Officer.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record, for ROC License No. 324879, as reflected on the Registrar’s public website on February 04, 2021. Such prior License record reflects that Respondent’s license is active and renewed through June 30, 2021. The license has not been previously disciplined by the Registrar. The record also reflects that there is one complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a surety bond on the license for $9,000.00 each, issued by Merchants Bonding Company, effective May 16, 2019.

On or about October 12, 2019, Complainant hired Respondent to frame a 2252sq.ft. residence with an 814sq.ft. garage and 882sq.ft. porch on property located at 35010 S. Kings Way, Black Canyon City, AZ 85324. The total cost of the project was $46,150.00, which Complainant paid in full. Work on the project began December 07, 2019, and stopped on July 02, 2020.

On or about July 06, 2020, the Registrar received a complaint from Complainant alleging 2 complaint items regarding poor workmanship. Attached to the complaint was a copy of the parties’ underlying contract dated October 12, 2019, addendums dated October 29, 2019, and December 18, 2019,

It was registered as Complaint 2020-03227 and assigned to David Fagerburg (“Investigator Fagerburg”) for investigation.

On July 08, 2020, Investigator Fagerburg issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an onsite review at the project site on July 28, 2020, at 1:30 p.m.

On July 28, 2020, Investigator Fagerburg inspected the work that had been done on the project and took 30 photographs of the project. Respondent was not present. When he was finished, Investigator Fagerburg drafted Jobsite Inspection Notes. Ultimately, Investigator Fagerburg substantiated both of Complainant’s complaint items.

On July 31, 2020, Investigator Fagerburg issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s allegations that Respondent’s work on the project failed to meet minimum Registrar workmanship standards. Specifically, Investigator Fagerburg determined that Respondent had not completed the installation of the porch header beams and columns properly and that the interior and exterior swing doors and interior pocket doors had not been installed properly either and were missing hardware. Respondent was instructed to correct the lumber installation and all doors by appropriate means, and complete the project. Respondent was further put on notice that he had until 5:00 p.m. on August 31, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).

On August 31, 2020, Investigator Fagerburg issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an onsite review at the project site on September 01, 2020, at 11:30 a.m.

On September 01, 2020, Investigator Fagerburg inspected the project and took 12 photographs. Respondent was not present. When he was finished, Investigator Fagerburg drafted Jobsite Re-Inspection Notes. Ultimately, Investigator Fagerburg determined that Respondent had successfully completed remediation of complaint item 1, but that further repairs were necessary to completely remediate complaint item 2.

On September 03, 2020, Investigator Fagerburg issued a Addendum Written Directive from the Registrar (“Addendum Directive”) to Respondent, in pertinent part, as follows:

“Based on re-inspection conducted 9-1-2020 at 11:30 am after additional evidence was obtained, I am unable to determine if the respondent is responsible for the condition of the door installation at this time other than one of the pocket doors does not have a stop at the back of the pocket and the door panel slides into the pocket 12” further than it should. The respondent is to correct the pocket door by appropriate means.”

Respondent was further put on notice that he had until 5:00 p.m. on September 18, 2020, to notify the Registrar of its compliance with the Addendum Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).

On September 23, 2020, Investigator Fagerburg escalated Complaint 2020-03227 to the Registrar’s legal department with a Citation Recommendation.

On September 24, 2020, the Registrar issued a Citation to Respondent for an alleged violation of Ariz. Rev. Stat. §§ 32-1154(A)(3); also a violation of Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until October 09, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155(C).

On October 28, 2020, the Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on December 10, 2020. Per the Notice of Hearing the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure 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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”).

Hearing Evidence

Complainant testified on her own behalf, called Investigator Fagerburg as a witness, and submitted 12 exhibits into the record. Timothy Yniguez testified on behalf of Respondent. The Registrar’s electronic Agency File and Notice of Hearing were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

On August 25, 2020, Complainant confirmed with Investigator Fagerburg that Respondent had successfully performed remediations necessary to repair complaint item 1, which were acceptable to Complainant. Complainant also informed Respondent that he needed to provide “at least 3 days advance notice to work on Monday thru Sunday.” [sic] Complainant also asked Respondent to have more than 1 crewmember on site to limit the number of days Respondent had to work on the project.

At the September 01, 2020, re-inspection Respondent appeared with his foreman, John. Complainant refused Respondent entry into the residence and asked him to leave, pointedly telling Respondent to “Fuck off” and calling him a “liar.” Respondent complied and left the project site.

Respondent’s foreman, John, declined to perform the underlying pocket door remediation for Complainant, telling Respondent “I can’t handle that, you do it.”

On September 04, 2020, Respondent emailed the Registrar a proposed 15-day remediation schedule to address complaint item 2, noting “I will be doing the 1 door personally and using all 15 days everyday per the R.O.C. directive to see that we get it right.” [sic] The corrective work was split up, in large part, to appease and accommodate Complainant’s work-from-home schedule and reduce noise and dust.

On September 08, 2020, Investigator Fagerburg confirmed with Complainant that his compliance inspection was solely limited to one interior pocket door, to which Complainant replied that, “Repairing the just the one pocket door is not acceptable” and that “we would prefer that John make the repairs in lieu of Tim.” [sic]

On September 09, 2020, Investigator Fagerburg advised Complainant that Respondent had until September 18, 2020, to complete repairs per the Addendum Directive.

On September 11, 2020, Complainant wrote to the Registrar and Respondent that Respondent had not begun repairs or provided a date to start them, and that Complainant’s 3-day advance notice requirement was still in effect against Respondent. Complainant also noted, “Tim is not welcome in our home. John of A&R would be acceptable.” Respondent countered that he had made 3 prior attempts to schedule repair work on the project and that he would perform the corrective work. Complainant replied, “Your John just needs to let us know when he’d like to start. You will not be allowed on the property.”

On September 18, 2020, Complainant notified the Registrar that Respondent had not complied with the Addendum Directive.

On January 15, 2021 Investigator Fagerburg issued a Pre-Hearing Jobsite Inspection Notification Letter to the parties, advising that he would conduct an onsite review at the project site on February 02, 2021, at 11:30 a.m.

On February 02, 2021, Investigator Fagerburg inspected the project site and confirmed that no additional corrective work had been performed on the pocket door at issue since his re-inspection on September 01, 2020.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this case are clear.

It is clear that the parties had a $46,150.00 framing contract, which Complaint paid in full. It is also clear that Respondent’s work on the project fell below the Registrar’s minimum workmanship standards, which were itemized as substantiated complaint items 1 and 2. It is also clear that Respondent made sufficient corrections to complaint item 1 prior to the expiration of the original July 31, 2020, Directive. It is further clear that Respondent was only required to make corrections to Complainant’s interior pocket door per the Registrar’s September 03, 2020, Addendum Directive by September 18, 2020, and that Respondent failed to timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely complete remediates for the project per the specifications outlined in the Registrar’s Addendum Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that Respondent raised the valid affirmative defense of denial of access. The record reflects that Complainant refused to grant Respondent access during the Addendum Directive compliance period, notwithstanding the fact that Respondent did not request access at the onset of that period. While it is true that Complainant was not legally required to permit Respondent to enter the project site, Complainant did effectively waive right to the workmanship claim against Respondent by depriving Respondent an opportunity to correct the deficiencies in the work at issue. The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the issuance of discipline against their license. Here, Respondent has presented sufficient proof to establish a lack of opportunity.

Although Complainant established a minor violation of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108, there is insufficient evidence in the record to hold Respondent in violation of § 32-1154(A)(22) by a preponderance of the evidence. Thus, no grounds exist for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complainant’s appeal be dismissed.

IT IS FURTHER RECOMMENDED that Complaint 2020-03227 be closed.

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, February 24, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors