ALJDEC decisions subject to certification as final

2020A-03947-CHC-ROC · Registrar of Contractors · 2021-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martha A. Bernardis,

COMPLAINANT

Non Typical Contractors, LLC,

License No. ROC 328069,

RESPONDENT

No. 2020A-03947-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 29, 2020

APPEARANCES: Complainant Martha A. Bernardis appeared on her own behalf. Michael McCutcheon appeared on behalf of Respondent Non Typical Contractors, LLC. Arizona Registrar of Contractors Investigator Miles Crosby was a witness.

Also present for the hearing: Sunny Engelbeck, Tanner McCutcheon, Rene Gonzales

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Non Typical Contractors, LLC (“Respondent”) is the holder of License No. 328069 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about April 20, 2020, Martha A. Bernardis (“Complainant”) contracted with Respondent for the remodel of three stories of decking on her home. See Complainant’s Exhibit 1.

On or about August 16, 2020, the Arizona Registrar of Contractors (“Registrar”) received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Miles Crosby. After an August 24, 2020 jobsite inspection, Investigator Crosby issued a September 4, 2020 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 October 4, 2020.

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

Compliance Item: 4 - East side 3rd story stairs: 1) bottom runner weight is resting on only 1 of 4 runners and it is cracking. The other runners are floating and not touching the bottom of the deck. Looks like angle is cut is wrong on all runners. 2) runners at top of stairs are "floating" inside brackets and held in with deck screws only. 3) no bolts on 4x4 supports 4) stair treads cracking & lifting from runners noticed in June. Stairs creak and pop when walked on concern that they are not built to code and will not hold up to snow load.

Investigator’s Observation: Respondent shall correct by the appropriate means. Contractor should properly prepare and refinish areas where texture and color is not uniform, matching texture and color as closely as possible. Where the texture and color is not uniform and affects the majority of the wall or area, the whole area should be refinished.

Compliance Item: 6 - East side 3rd story deck: no drip edge between house and deck, missing joist hangers to hold fascia, deck not double wrapped. Poor workmanship many wrong angles and gaps. deck appears to be pulling apart and deck screws are visible. This happened before any rain or snow on deck and deck is not even 6 months old. contractor states this is due to wood shrinkage.

Investigator’s Observation: I observed there to be no drip edge or other

water resistant material at the ledger board and house connection.

Compliance Item: 7 - West 2nd story deck: no drip edge between house and deck, deck stain inconstant color, appears to be applied unevenly, wood appears dried out in some areas and the stain on deck was is not 6 months old. Suspicion that deck stain was thinned. Will need to be re stained.

Investigator’s Observation: I observed there to be no drip edge or other

water resistant material at the ledger board and house connection.

Compliance Item: 9 - Southeast 2nd story deck: support beams floating in hangers, 4x4 posts have no hardware or bolts. 4x4 cut incorrectly so it is 2" thick at base and then covered. This was pointed out to contractor and he said he would fix it before the deck was stained. He did not fix it. Rail does not have center support. no drip edge between house and deck, not double wrapped. Many areas not stained. 45 degree cuts have gaps contractor states its wood shrinkage.

Investigator’s Observation: I observed there to be no drip edge or other

water resistant material at the ledger board and house connection.

Compliance Item: 10 - Northeast base stairs: No headboard, no blocking no hardware, held together with deck screws and shims, I am not sure the stairs are even attached to the house. Untreated 4x4 support post put directly into

cement without hardware or stain (it will rot), 4" cement slab at base causes water to pool by house basement wall, contractor asked before he pored the cement if the grade would be away from house and I was told yes. many areas of unstained wood.

Investigator’s Observation: I observed the stairs to have no attachment

to the landing concrete or to the residence.

Compliance Item: 11 - South side carport cover was detached from house by contractor and blocking looks like screws are pulling away from house (contractor states wood shrinkage).

Investigator’s Observation: I observed the blocking which was described as aesthetic only.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Michael Mccutcheon stated prior to starting the work that no permit was needed for rebuild of ,3 story 3 decks with 3 sets of stairs attached to house. This deck is in an area that gets lots of snow and this was discussed before the job. He told me no permit was needed.

Investigator’s Observation: ROC has no authority to revise or direct

revision of building permits.

Compliance Item: 2 - Michael Mccutcheon insisted on 60% down prior to

starting and would not give me a copy of invoice for materials used. He delivered a lot of materials and left them at my house for 3 days while they

worked on the deck. Then he removed a lot of materials and siding and told me it was not mine but was for another job.

Investigator’s Observation: ROC doesn’t regulate what contractors charge.

Compliance Item: 3 - Michael Mccutcheon insisted on payment prior to walk through and put me off for 2 months and did not come back to "talk" until 8/3/2020. At that time he yelled at me in front of my daughter and Tanner Mccutcheon when I brought up concerns regarding stability of the deck. Threats and insults when told I would talk to ROC. Told no inspector will go against him and if I report I wont be able to hire anyone in town to work on my house ever again.

Investigator’s Observation: The ROC does not regulate the business

practices of contractors.

Compliance Item: 5 - East side 3rd story vertical/horizontal beam supports: contractor elected to use old support beams, I not sure if they are plum or stable because they moved during deck demo. Missing hardware and threw bolts. Held together with deck screws only, concern regarding stability. Deck not double wrapped (original deck had 2 boards)

Investigator’s Observation: This is common industry practice and does

not constitute poor workmanship.

Compliance Item: 8 - Southeast 2nd story deck: contractor elected to use

old pillars which "lean". This was pointed out during construction to contractor and he said it was that way to keep deck level. (the house is on a hill), Base pillar beam held with bolt. Concern for improper load distribution and fear that deck will fall.

Investigator’s Observation: I observed nothing in the contract that indicated the removal and installation of new structural supports for this project.

Compliance Item: 12 - Southside 2nd story deck stairs: contractor elected to use old pillars which are now starting to lean, not sure how stairs were reattached to house they vibrate when walked on, missing double wrap behind stairs, areas of water concern below deck.

Investigator’s Observation: Insufficient Evidence to determine

Compliance Item: 13 - Parts of all decks stamped hem-fir when KD doug fir grade 1 or better was supposed to be sued. Smart panel siding is the wrong color. saws-all cuts inside window boxes inside the house. Poor workmanship though-out.

Investigator’s Observation: The contact had no observable details to indicate the only KD Doug Fir be used on the entirety of the project. Smart

panel siding is a predetermined color chosen by the Complainant.

Following the issuance of the Written Directive, after receiving communications from both parties concerning access to the jobsite, and after the deadline in the Written Directive expired, Investigator Crosby scheduled a compliance inspection on October 5, 2020.

After the compliance inspection, on October 9, 2020, Investigator Crosby authored Compliance Jobsite Inspection Notes as follows:

Compliance Findings:

The respondent corrected some of the findings from the JSI. However,

several items were not addressed or corrected. The carriage for the stairs did not meet minimum standards including the stair hangers and the need for risers due to being more than 30” above the ground. There was not water barrier installed at the threshold of the upstairs door nor were any of the incorrect angles that were cut on the hand rails and seating corrected, as noted in the photos. Much of the wood was not properly weather treated leaving cut ends and down facing ends vulnerable to moisture. The landing for the stair was still below grade which creates pooling when a weather event occurs. Also there was not attempt to correct the cut edges on the window trim of the Arizona Room.

Some items were corrected as not in the photographs.

Thereafter, Investigator Crosby forwarded the matter to the Registrar’s Legal Department. 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); and A.R.S. § 32-1154(A)(22).

Investigator Crosby testified consistently with his findings contained in the Written Directive and the Compliance Inspection Notes. Investigator Crosby testified that overall, Respondent failed to comply with the Written Directive. Investigator Crosby further testified that a contractor should be aware of what minimum workmanship standards are, and should know how to bring deficient work in compliance with those standards. Investigator Crosby also testified that notwithstanding some of the work meeting minimum standards, some of the work was not aesthetically pleasing and that Respondent performed the bare minimum amount of work to meet standards.

Investigator Crosby testified that when Respondent agreed to remodel the decking, he accepted the surface upon which it performed its work and if there was an issue with that surface, Respondent should have notified Complainant that the substrate needed to be corrected and incorporated such into the contract, or declined to contract to work on the project.

The Registrar’s substantive policy statement 2017.01 sets out the following pertinent information:

Acceptance of the Surface

As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.

Complainant described the work that Respondent was contracted to perform as it pertained to the three levels of decking on her home. Complainant testified specifically and in detail about the workmanship deficiencies contained in the Complaint, Written Directive, and Compliance Inspection Notes. Complainant submitted photographic evidence of the deficiencies and explained what specific deficiency each photograph depicted, including, cracks, gaps, and lack of supports. See Complainant’s Exhibit 4 at 12-15, 17-21, 24, 26, 27, 32, 34, 36-38, 40-42, 46, 49, 50, 58, 63, 64, 70, and 77. Complainant testified that in response to the Written Directive, Respondent only spent one hour and forty five minutes performing corrective work and “did the bare minimum.”

Michael McCutcheon, a member of Respondent, testified that the project was a repair project, not a complete rebuild, and that Respondent did not remove or move some of the boards about which Complainant has complained. Mr. McCutcheon also referenced photographs during his testimony that he asserted depict a lack of cracking and screws holding the decking in place. Mr. McCutcheon asserted that the gaps are necessary for water to run through, as the deck is not water tight. Mr. McCutcheon specifically referenced and testified about Respondent’s Exhibit 7, which consists of photographs taken before Respondent began work on the project, Respondent’s Exhibit 8, which consists of photographs taken during the project, Respondent’s Exhibit 9, which consists of photographs taken upon completion of the project, and Respondent’s Exhibit 10, which consists of photographs taken after work was performed in accordance with the Written Directive. Mr. McCutcheon specifically referenced and testified about Respondent’s Exhibit 8, photographs 29, 82, 83-86 90, 70, 76, Exhibit 9, photograph 18, Exhibit 7, photograph 1 and 16, Exhibit 10, photographs 3, 4, 7, 9, 10, 13.

Mr. McCutcheon testified that Respondent “did everything right,” used the proper screws, bolts, and wood, and that all work was done to code and “looked good.” Mr. McCutcheon explained that wood expands, shrinks, and cracks due to the outside elements.

Administrative notice is taken of Respondent’s prior License record on January 7, 2021. Such prior License record reflects that Respondent’s License No. 328069 was first issued on March 10, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled/withdrawn complaints, and no discipline 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 credible, substantial, and probative 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 did not complete the required corrective work 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. 328069 for a period of five (5) 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 (30) 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 7, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000