ALJDEC decisions subject to certification as final

2021A-02447-CHC-ROC · Registrar of Contractors · 2021-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mary Wall,

COMPLAINANT,

v.

Bret Wallace Blakeslee

License No. ROC 326282,

RESPONDENT.

No. 2021A-02447-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 25, 2021

APPEARANCES: Complainant Mary Wall appeared on behalf of herself. Respondent Bret Wallace Blakeslee appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about October 25, 2020, Respondent Bret Wallace Blakeslee License No. ROC 326282 entered into home remodeling contract with Complainant Mary Wall, wherein Mr. Blakeslee would remodel Ms. Wall’s bathroom.

2. On or about December 1, 2020, Mr. Blakeslee started work.

3. On or about February 22, 2021, Mr. Blakeslee stopped work.

4. On or about June 1, 2021, Complainant Mary Wall filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor workmanship on the part of Mr. Blakeslee.

5. On or about June 22, 2021, Investigator Robert McQuien conducted a job-site inspection.

6. On or about June 23, 2021, Investigator McQuien issued a Directive to Mr. Blakeslee. Through the Directive, Investigator McQuien directed Mr. Blakeslee to correct complaint items 2, 3, 5, and 6 by appropriate means. See the Registrar’s Administrative Record, pgs. 22-25. The June 23, 2021 Directive provided, in relevant part, as follows:

Compliance Item: 2 - Tiles not grouted properly. Tile transition into carpeted bedroom had a 30% angle to them.

Investigator’s Observation: Tile missing grout. Contractor take corrective action.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - The sink counter tiles are not level.

Investigator’s Observation: Ridge on countertop approx. 1/16 inch. Contractor take corrective action.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Did not complete caulking of baseboards.

Investigator’s Observation: Caulking missing from baseboards in bathroom. Contractor take corrective action.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Edges of tile around sink have gaping holes.

Investigator’s Observation: Open gap on top of sink basin. Contractor take corrective action.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

7. On August 12, 2021, Investigator McQuien conducted a compliance job-site inspection. Investigator McQuien concluded that Mr. Blakeslee correctly repaired complaint items #5 and #6.

8. The written and testimonial evidence presented at hearing show that during the time period for compliance under the Directive, Mr. Blakeslee repaired complaint item #2. However, Ms. Wall broke the tile. Mr. Blakeslee subsequently repaired complaint item #2, however, Mr. Blakeslee stepped on the tile and broke it.

Mr. Blakeslee did not have enough material to correct the area a third time before the Directive deadline expired.

9. At the compliance inspection, Investigator McQuien concluded that

Mr. Blakeslee did not correct complaint items #2 and #3.

10. On August 17, 2021, the Registrar issued a Citation against

Mr. Blakeslee’s contractor’s license. Through the Citation, the Registrar alleged that

Mr. Blakeslee may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R9-4-108(a). 11. Mr. Blakeslee filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on October 25, 2021.

14. At hearing, Ms. Wall testified on behalf of herself. Mr. Blakeslee testified on behalf of himself. Investigator McQuien testified regarding the investigation of the complaint and the issuance of the Directive.

15. Ms. Wall asserted that Mr. Blakeslee performed poor work when he remodeled her bathroom. Ms. Wall explained that the correct tile arrived in April of 2021. Ms. Wall admitted that she initially broke the tile leading to the carpeted bathroom after Mr. Blakeslee repaired the area.

16. Mr. Blakeslee explained that after he repaired complaint item #2, Ms. Wall stepped on the tile and broke it. Mr. Blakeslee repaired the area again and stepped on the tile himself and broke it. Mr. Blakeslee stated that he would not perform any further work on Ms. Wall’s home during the timeframe for performance under the Directive.

17. Investigator McQuien testified regarding his investigation of the complaint and the issuance of the Directive. Investigator McQuien clarified that the Directive deadline was not extended. However, Investigator McQuien testified to the effect that he would consider any additional repairs that Mr. Blakeslee performed before his compliance inspection in his determination of whether the case would be recommended to the legal department for the issuance of a Citation.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction. See A.R.S. § s 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation 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 Administrative Law Judge may consider ROC’s administrative

record. See A.A.C. R4-9-118.

4. Construction is not a perfect art and, generally, contractors must be

afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked.

5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a) and thereby of A.R.S. § 32-1154(A)(3).

6. Regarding complaint item #2, the evidence presented at hearing shows that Ms. Wall broke the tile after Mr. Blakeslee’s repair during the timeframe for compliance under the Directive. Therefore, the Administrative Law Judge does not conclude that

Mr. Blakeslee failed to correct complaint item #2.

7. However, the preponderance of the evidence shows that Respondent did not correct complaint item #3 during the time frame for compliance under the Directive, which is a 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 of Contractors shall suspend Bret Wallace Blakeslee License No. ROC 326282 for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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 is forty days after the date of that certification.

Done this day, November 15, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors