ALJDEC - Licensing
2021A-06451-CHC-ROC · Registrar of Contractors · 2023-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bonnie Campbell-Schmelzer,
COMPLAINANT
v.
Mr. McQ's LLC,
DBA: K&S Home Remodeling,
License No. ROC 333800,
RESPONDENT
No. 2021A-06451-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 19, 2023
APPEARANCES: Complainant Bonnie Campbell-Schmelzer appeared and was represented by Mark Sifferman. Anthony McQuality, Owner and Qualifying Party, appeared on behalf of Respondent Mr. McQ’s LLC, which was represented by Douglas Suits.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Mr. McQ’s LLC (Respondent) is the holder of License No. 333800 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 13, 2021, Bonnie Campbell-Schmelzer (Complainant) entered into a contract with Respondent for a remodeling project at her home.
On or about December 6, 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 Steve Klein.
Investigator Klein conducted a jobsite inspection on January 19, 2022. During the course of the inspection, Complainant stated on multiple occasions that she would not allow Respondent to return to the jobsite until the findings from the jobsite inspection were shared with the parties and she had an opportunity to consult with legal counsel.
On or about January 21, 2022, Investigator Klein 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 January 24, 2022.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint #1 No Professional contract
Inspector’s Observation: Inspector addressing issues by sending appropriate letters.
Governing Rule: 32-1158 (A) Minimum elements of a contract.
Complaint #2 No construction plan, schedule, baselines . . . .
Complaint #3 No materials paid for have been delivered, still at GCs property . . . .
Complaint #4 GM nor crew rarely had any leadership, schedule work orders. . . .
Complaint #7 POD storage never ordered. . . . .
Complaint #13 No or wrong equipment to level concrete slabs – uneven spots. . . .
Complaint #16 Fridge sitting in living, dangerous wire, water line for tripping. . . .
Complaint #17 GC never removed pony wall, never repaired sheetrock. . . .
Complaint #18 GC forgot- never knew, not contract, he was to do all drywall repairs. . . .
Complaint #19 GC ignored required 2 useable bathrooms promised he’d fix by the next day. . . .
Complaint #20 Guest bath leaked down to laundry room after removing toilet. . . .
Complaint #21 GC continually ordered w/o consulting showing materials . . . .
Inspector’s Observation: At the time of inspection the job is incomplete. . . .
Complaint #22 GC ordered slide doors & window from Mfr. known for poor quality. . . .
Complaint #23 Guest bath waterproof boards, GC said could be patched no need to replace. . . .
Complaint #24 Baseboards are poorly installed in places with damage caused by crew. . . .
#25 Baseboards are 2” bullnose not 4” as requested, incomplete. . . .
Complaint #26 Base boards were to be replaced throughout the house to match, didn’t buy enough. . . .
Complaint #27 Deck demo left a hole through the wall allowing scorpions in upstairs. . . .
Complaint #28 GC claimed baseboards bullnose had to be made. Caused delays. . . .
Complaint #31 GC wasn’t sure how to do deck footings. Crew explained, but GC ignored info. . . .
Complaint #34 Footings for spiral left as a dangerously deep hole, mounds of dirt. . . .
Complaint #35 Spiral stairs never ordered as claimed. . . .
Complaint #36 GC claims rails ordered , sent back. . . .
Complaint #37 Incorrectly installed wrong deck subfloor. . . .
Complaint #38 GC said he didn’t know the deck was going to be walked on. . . .
Complaint #39 GC claimed he didn’t know enclosed patio had to stay dry. . . .
Complaint #40 GC finally admitted he didn’t know how to install 100% water proof. . . .
Complaint #44 Wiring under deck questionable- correct switches. . . .
Complaint #45 Wiring isn’t taunt or straight, incomplete. . . .
Investigator Klein’s observations to each of the listed complaint items except Complaint #1 was as follows:
Inspector’s Observation: At the time of inspection the job is incomplete.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, local building codes and manufacturers installation instructions.
Governing Rule: The complaint will be reviewed at the expiration of the directive to determine if a citation is warranted.
Following the issuance of the written directive, Respondent reached out to Complainant multiple times to arrange times to perform the corrective work.
On or about January 22, 2022, Respondent emailed Complainant the following:
Hello and good after noon.
I want to reach out to see if we can come to a civil settlement and or if you were going to allow us to finish the work? If you’re looking for a cash settlement please let me know what you think is reasonable and see if we can come to an agreement I have offered you a very rea onable ettlement in my eye if not Plea e let me know what be t work for you.
Thank you and hope you have a great weekend.
All errors in original.
On or about January 24, 2022, Respondent emailed Complainant the following:
Hello and good morning I just wanted to make sure you received my last email. Do you want us to finish the work at your house if so when would you like us to start?
Complainant forwarded the emailed to her legal counsel and “forgot about them.”
After the deadline in the directive expired, Investigator Klein 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); and A.R.S. § 32-1154(A)(22).
Investigator Klein testified that, while he did not recall any conversation indicating the spiral staircase would take six to eight weeks to come in, it was his general practice to ask complainants for extensions if they contractor was working and making progress on the project before the deadline in a directive expired. Investigator Klein further stated that he recommended at the jobsite inspection that the parties work the matter out between them. Investigator Klein recalled that Respondent contacted him several times after the directive was issued to say that Respondent was not getting access to the property.
Complainant testified that she never denied Respondent access to the property. Rather, Complainant stated that Respondent was “always invited to come back once we worked things out.” According to Complainant, “working things out” could only occur after she got the written directive and Respondent “agreed to my requests.” Complainant also testified about a series of text messages that were sent in an email to Respondent and Investigator Klein on March 13, 2022. Complainant was initially unclear as to when the text messages were sent and received, but ultimately she stated they occurred on March 13, 2022. The text messages included the following exchange:
A
Hey Bonnie I am going to end a crew over to your home to tart working what time work be t for you ? Plea e let me know via email text or call.
Thank you and hope you have a great rest of your weekend!
B
I want at lea t 10 referral ’ name and phone number that I’ve reque ted from day one in order to peak with them I want the names and contact information of persons of your previous co-owned business. I want names, addresses, ROC# as well. I want the same information on the large well known construction company that you worked for, for over five years and had 700 crew members under your supervision. I want all materials we paid for delivered here. I want all receipt for our purcha e I want the credit receipt on all the over ordered returned product If the tore name, address, phone numbers are not on the receipts, this information must be provided. I have continually requested all this information from the very beginning which I have yet to receive.
I e pect all the e reque t completed in full by thi week
All errors in original.
Mr. McQuality testified that Complainant explicitly stated at least seven times that Respondent would not be allowed to return to the project. Mr. McQuality stated he was aware the spiral staircase could not be completed by the February 24, 2022 deadline in the written directive. Mr. McQuality indicated that Complainant failed to respond to any of his attempted communications between January 19, 2022, and February 24, 2022. Mr. McQuality stated that he did not believe the text messages referenced in the March 13, 2022 email occurred prior to the deadline in the written directive expiring.
Administrative notice is taken of Respondent’s prior License record on February 8, 2023. Such prior License record reflects that Respondent’s License No. 333800 was first issued on June 23, 2021, and is active. Such prior License record also reflects that there were two open complaints and no prior 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 Vazzano 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 attempted to contact Complainant to perform the corrective work, but Complainant did not respond. Further, even assuming the texts included in the March 13, 2022 email were prior to the deadline expiring, Complainant was not granting access, but was making extensive demands of Respondent prior to allowing Respondent access to the property. While Respondent failed to take appropriate corrective action following a written directive from the Registrar, Respondent had valid justification for doing so given Complainant’s denial of access. Therefore, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(22).
The Registrar neither expects nor demands perfection of its licensees. While the job may have been incomplete at the time of the jobsite inspection, the deadline in the written directive was issued to allow Respondent an opportunity to complete the job and correct any workmanship issues. Complainant’s failure to allow access to the property precludes a finding of a workmanship violation. Therefore, Complainant failed to establish that Respondent’s work was not in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
RECOMMENDED ORDER
It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Bonnie Campbell-Schmelzer’s complaint in Case No. 2021-06451 against Respondent Mr. McQ’s LLC’s License No. 333800 based on Complainant’s failure to provide Respondent access to comply with the written directive.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, February 8, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Mark S. Sifferman Esq
The Sifferman Law Firm, PLLC
[email redacted]
Steve Klein
[email redacted]
Douglas J. Suits, Esq.
Suits Law Firm, PLC
[email redacted]
[email redacted]
By: OAH Staff