ALJDEC decisions subject to certification as final

2021A-03216-CHC-ROC · Registrar of Contractors · 2022-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara From,

COMPLAINANT

Craven Construction LLC

License No. ROC 311721,

RESPONDENT

No. 2021A-03216-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2022

APPEARANCES: Complainant Barbara From appeared on her own behalf. Randy Craven, Owner and Qualifying Party, appeared on behalf of Respondent Craven Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Craven Construction LLC (Respondent) is the holder of License No. 311721 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 28, 2021, Barbara From (Complainant) signed a contract with Respondent for, among other things, the application of approximately 1” of polyurethane foam over the entire roof of the home. The contract did not include an advisement that Complainant had the right to file a complaint with the Registrar regarding the project.

On or about July 12, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 14, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: Overspray on siding.

Investigator’s Observation: Foam overspray noted on south siding of structure, on east (E) window awning at the rear of the home and, awning on east (E) side of home.

Governing Rule: Workmanship Rule: A.R.S. §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 3: Overspray on fence.

Investigator’s Observation: Foam overspray noted on fence in several areas.

Governing Rule: Workmanship Rule: Refer to A.R.S. §32-1154(A)(3), namely R4-9-108(A) cited above.

Complaint Item 4: Overspray on central air.

Investigator’s Observation: Foam overspray noted on top and sides of A/C condensing unit located in rear yard.

Governing Rule: Workmanship Rule: Refer to A.R.S. §32-1154(A)(3), namely R4-9-108(A) cited above.

Complaint Item 5: Overspray on personal items.

Investigator’s Observation: Foam overspray noted on several of personal items located in back yard.

Governing Rule: Workmanship Rule: Refer to A.R.S. §32-1154(A)(3), namely R4-9-108(A) cited above.

Complaint Item 6: Crickets not built to ensure water drain off. They attempted this twice.

Investigator’s Observation: Numerous area of extensive water ponding noted on roof. No crickets noted on the roof & fan exhaust vent/caps covered with foam. Investigator took only three photographs to show extensive problems with roof.

Governing Rule: Workmanship Rule: A.R.S. §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner and, A.R.S. §32-1154(A)(2)(b) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.

Complaint Item 11: Can physically see spots on roof where white elasto. didn't cover underlying foam.

Investigator’s Observation: Areas of missing elastomeric coating noted on roof exposing underlying foam to the sun.

Governing Rule: Workmanship Rule: Refer to A.R.S. §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner and, A.R.S. §32-1154(A)(2)(b) cited above.

Following the issuance of the written directive, Respondent did not attempt to perform any corrective work. After the deadline in the directive expired, Investigator Cruz was notified no corrective work had been performed.

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.R.S. § 32-1154(A)(22); and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

Investigator Cruz retired from the Registrar after his involvement in this matter. Randy Cason, Assistant Attorney General Chief of Compliance, appeared on behalf of the Registrar. Mr. Cason acknowledged that he did not observe the project at the time of the jobsite inspection and was only able to report Investigator Cruz’s observations from his records.

Ms. From testified that the roof was leaking, but Investigator Cruz’s test was not long enough to allow the water to permeate into the house. Ms. From also indicated that the crickets were not done properly and one air vent was completely covered. Ms. From stated that the overspray observed in the yard was from Respondent’s work on the roof. Mr. From stated that she did not have any contact from Respondent after the written directive was issued.

Daniel Webster testified on for Complainant that a new air conditioner unit had been installed at the home two weeks prior to Respondent’s work on the project. Mr. Webster acknowledged that the unit was used, but asserted it was in “like new” condition.

Kari Smith, Office Manager, testified that during her interactions with Ms. From, Ms. From was verbally abusive to her and the workers. Ms. Smith stated that she originally offered Ms. From two different dates, October 13, 2021, and October 14, 2021, to perform the corrective work, but Ms. From stated those dates did not work for her. Ms. Smith indicated that Respondent then decided it was unwilling to return to Ms. From’s house to perform the corrective work.

Mr. Craven testified that he had been roofing since 2001, had been a qualifying party since 2011, had completed up to 8,000 roofs in that time, and this small $4,800.00 job was the worst he had ever worked on. Mr. Craven stated that he did not believe Respondent was responsible for the overspray on the project. Mr. Craven indicated that Ms. From was rude to his employees and that Respondent would not be going back out to the house to perform any further work on the project.

Administrative notice is taken of Respondent’s prior License record on January 28, 2022. Such prior License record reflects that Respondent’s License No. 311721 was first issued on February 21, 2017, and is active. Such prior License record also reflects that there were no other open complaints, two prior complaints resulting in discipline and two prior resolved/settled 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 did not attempt to complete the corrective work following the 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).

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).

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. 311721 for a period of one day.

It is further recommended that, on or before thirty days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

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, January 31, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000