ALJDEC decisions subject to certification as final

2020A-04976-CHC-ROC · Registrar of Contractors · 2021-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vickie Marie Folau,

COMPLAINANT

Knight & Morgan LLC

DBA: The Morgan Group Construction,

License No. ROC 321422,

RESPONDENT

No. 2020A-04976-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 24, 2021 and April 5, 2021

APPEARANCES: Complainant Vickie Marie Folau appeared via Google Meet and was represented by Nathaniel Wadsworth, Esq. also appearing via Google Meet. Respondent Knight & Morgan, LLC was represented by Daniel Miranda, Esq. appearing via Google Meet. King Folau, Greg Koons and Kyle Knight appeared as witnesses. Wes Ellington, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Knight & Morgan, LLC. (Respondent) is the holder of License No. 321422 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 2, 2020, Vicki Marie Folau (Complainant) signed a contract with Respondent for an addition to her residence and remodel a portion of the inside of the residence.

On or about October 20, 2020, the Registrar received a Complaint containing seventy items against Respondent from Complainant alleging poor work with respect to project including gaps around the newly installed windows and the framing, among others.

The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection was performed on November 12, 2020.

Complainant also filed an addendum on or about November 20, 2020 including two new items, namely, large seems in the siding and inconsistency with the nail heads on the project. Investigator Ellington then performed a second jobsite inspection on or about December 8, 2020.

Investigator Ellington then issued a written directive on or about December 11, 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 January 11, 2021

. . .

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

Complaint Item: 1. Roof inspection was done but the vents for laundry were not put back up into the roof for ventilation.

Investigator’s Observation: Verified. This 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: 2. Both doors that were placed on the master bedroom, and the additional bedroom cannot close.

Investigator’s Observation: Verified. The master bedroom door does not appear to be set correctly. The additional bedroom door does not latch. The hinge plates are not set completely into the mortised area which could be part of the issue and is also unsightly. These issues 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: 6. Cabinet install has not been completed for months.

Investigator’s Observation: Verified. There is multiple areas of damage to finish from installation. Drawers close unevenly. This 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: 7. Windows that have been installed have large gaps.

Investigator’s Observation: The gaps are referring to the window protruding from the opening excessively in some locations. Other locations are flush. Respondent needs to install these windows per manufacturer instructions and assure uniformity in appearance and functionality.

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: 8. SECOND contract date ended on July 31,2020. Contractor still not completed work.

Investigator’s Observation: The Respondent will need to complete the job as per contract.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 9. Have had many in person meetings with both contractors on site with no changes in work.

Investigator’s Observation: The Respondent will need to complete the job as per contract.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item: 11. On the framing around windows on the outside are very large gaps in corner seams and large gaps between windows and house.

Investigator’s Observation: The issue has been resolved, but still needs to be painted.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Addendum Complaint Item: A1. The siding looks like it was put on after the eves so there is a seam that they have covered with a piece of wood, there is a large seam where the 2 pieces of siding come together and they just put up a board instead of having the siding overlapping in order to help seal it.

Investigator’s Observation: Verified. This seam should be lapped as it is with the original section of the house. This was also called out as a correction by the building inspector. The respondent will need to correct all issues associated with the building permit and inspections related to it.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Workmanship rule: ARS §32-1154 (A) (2), Departure from or disregard of: (a) plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Addendum Complaint Item: A2. There are areas that are nailed in with a head on the nail and other areas that do not have the nails with a head on it.

Investigator’s Observation: Verified. The respondent will need to fasten the siding as per manufacturer’s instructions and as per building code fastener specifications.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Workmanship rule: ARS §32-1154 (A) (2), Departure from or disregard of: (a) plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

(All errors contained in the original)

On December 21, 2020, Investigator Ellington performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Ellington found that Complaint items 2, 6, 7, 8, 9, 11 and A2 were still not in compliance.

On December 24, 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).

On or about January 5, 2021, Respondent e-mailed an Answer to the Registrar.

On or about February 22, 2021, a Notice of Hearing was issued setting a hearing on March 24, 2021 at the Office of Administrative Hearings, an independent state agency. After the initial hearing, a further hearing was held on April 5, 2021.

A prehearing inspection was completed on January 28, 2021, and in his Notes regarding the same, Investigator Ellington found that Complaint items 2, 6, 7, 8, 9, 11 and A2 were still not in compliance.

Investigator Ellington testified as to his involvement and the above timeline.

Investigator Ellington testified that Respondent contacted him to schedule an early compliance inspection. Investigator Ellington believed that this was “really fast” to request an inspection. In addition, Investigator Ellington testified that while he was at the property four times, Respondent was not at the first two inscpections.

Investigator Ellington testified that almost all windows had issues, and that the inconsistency in the windows was not per industry standards.

Investigator Ellington also testified that he observed excessive nail holes in the siding. He testified that he believed that this was caused by Respondent removing the siding due to no under laying and then replacing the siding.

Further, Investigator Ellington testified that at places, the siding was not attached, as he could manually pull it away from the wall.

Finally, Investigator Ellington testified that he did not believe that Respondent intended to ignore the directive, but that they just did not try to comply as the same issues existed at the compliance and pre-hearing inspections.

Complainant testified on her own behalf and called Greg Koons and King Folau as witnesses. Complainant also submitted 16 exhibits into evidence.

Complainant testified that the work was not done by July 31, 2020 as originally agreed, and that Respondent commenced work on the build out in the beginning of August. She acknowledged that there was some delay from the town of Queen Creek in obtaining the permit due to the COVID-19 pandemic.

Complainant testified that some of the complaint items were remedied prior to the first inspection. Complainant further testified that Respondent sent workers three to four days after the directive, but did not inform her prior to their arrival.

Complainant testified that Respondent’s owners did not inspect the work themselves, and could not believe that they finished the directive requirements in such a short time period. Further, Complainant testified that she never informed Respondent that she was satisfied with the corrective work.

Finally, Complainant testified that the work did not pass inspection from the town on Queen Creek.

Next, Greg Koons testified on behalf of Complainant. Mr. Koons is licensed contractor specializing in residential remodels and home additions.

Mr. Koons testified that he provided an estimate to repair the work that had been completed by Respondent. Mr. Koons also testified as to his opinion of the workmanship. Mr. Koons opined that the windows were not caulked properly, the mitre cuts around the windows were improper, the nailing on the siding was not done to code, and stated that the siding would have to be removed once again as there was no vapor barrier installed.

Finally, King Folau, Complainant’s husband, testified. Mr. Folau testified that he witnessed Respondent’s workers drinking on the job during the framing and would leave beer cans on the site. He testified that once he informed Respondent, however, that the drinking and littering appeared to have stopped.

Kyle Knight testified on behalf of Respondent and submitted 8 exhibits into evidence.

Mr. Knight testified that he had been in contracting for 25 years and that while with Respondent, he had worked on 100 plus jobs and had no previous complaints.

Mr. Knight testified that this was a major project as it was basically building a new house and attaching it to the existing one.

In addition, Mr. Knight testified that at the time of the Complaint only 75% of the project was completed, and that some of these issues could have been remedied had they been allowed to complete the project.

Mr. Knight testified that he was not allowed back on the jobsite, so he had his lead foreman, Nelson, supervise the repairs and report back to him once they were completed.

As to the windows, Mr. Knight testified that there needed to be at least a 1/16 of an inch gap around the windows to allow the wood to expand during the change in weather otherwise it would buckle and cause issues.

With regards to the nail holes in the siding, Mr. Knight testified that Investigator Ellington was very sympathetic with Complainant, while being very quick with him and did not point out any specific areas which needed to be corrected.

Mr. Knight testified further, that he initially put the vapor barrier over the studs which was common place. In addition, Mr. Knight testified that he purchased new siding and that Nelson had used the new pieces during the corrective work at his discretion.

Mr. Knight testified that he and Nelson were in constant contact daily as to the repairs and that Nelson would send him pictures of the completed work.

Mr. Knight additionally testified that after the January 28, 2021 pre-hearing inspection, he requested to Complainant that he come back to make the repairs, which would take around five days, but Mr. Folau refused the offer.

Mr. Knight acknowledged that some issues still remain uncorrected like the doors and the one drawer in the kitchen, but refused that there were still issues with the windows and siding.

Administrative notice is taken of Respondent’s prior License record on April 16, 2021. Such prior License record reflects that Respondent’s License No. 321422 was first issued on August 22, 2018, and reflects that there is 1 open complaint, namely the present complaint.

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. Mr. Knight admitted that there were still issues with the doors and the one kitchen drawer. As to the windows in Complaint item 7, Respondent too admitted that there was an issue but now they have been corrected. With regards to the siding, while Respondent believes that there are no issues the same, the more credible evidence demonstrates that the siding was also below workmanship 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.

The evidence established that Respondent failed to complete the corrective work following the Directive being issued. The undersigned Administrative Law Judge finds it incredulous that Respondent would not use the extra time in the directive rather than rush to have the compliance and pre-hearing inspections. Respondent’s reliance on its foreman, Nelson, was clearly misplaced, and if Mr. Knight was not allowed on the property, he could have informed Mr. Ellington that Complainant was frustrating his attempts at complying with the directive. However, there was no testimony that this was the case. Further, while admittedly there are many different ways to install windows and siding, it was clear from the evidence presented, that issues still existed well after the opportunities to make the repairs. 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. 321422 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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 30 days from the date of that certification.

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Done this day, April 16, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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