ALJDEC decisions subject to certification as final
2022A-02693-CHC-ROC · Registrar of Contractors · 2022-09-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Daniel Knodl,
COMPLAINANT
v.
C & J Renovations LLC
DBA: HDK Landscape & Design
License No. ROC 324811,
RESPONDENT
No. 2022A-02693-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 15, 2022
APPEARANCES: Complainant Daniel Knodl appeared on his own behalf. James and Carie Kahn appeared on behalf of C & J Renovations LLC. Investigator Mark Nipp appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
C & J Renovations LLC. (Respondent) is the holder of License No. 324811 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 2, 2021, Daniel Knodl agreed to have Respondent install patio pavers and landscaping around his house The total cost was to be $3,500.00
On or about April 6, 2022, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Mark Nipp. The jobsite inspection was performed on May 12, 2022.
Investigator Morris then issued a written directive on or about May 12, 2022, 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 May 31, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item #2: The work he did do was poorly done
Investigator’s Observation: Verified
The complainant pointed out several areas in the project that he believed were poor workmanship.
I inspected the following areas and noted:
• Front walkway (p2-p6) – Both sides of the walkway near the front door have sunk dramatically, causing lippage exceeding 1/8”. The stone in these areas are loose and move when stepped on. The concrete edge restraint is missing in these locations. The pre-existing concrete sidewalk was partially removed and stone set on top. Edge restraints should remain stationary. Excessive deviations, dips or sags over short distances are considered unacceptable. There should be no more than 1/8” difference in height between adjacent pavers. The respondent should correct by appropriate means.
• Front Walkway (p7) – The end of the walkway, near the driveway slopes slightly due to the elevation change created by partially removing the concrete. The respondent states the complainant instructed them to stop using the jackhammer to remove the concrete and to use picks/crow bars instead. The respondent states the compromise was to build over the partially removed sidewalk. There was Insufficient Evidence to determine what was/wasn’t agreed upon verbally. The Contract does not specify. No further action is required.
• South walkway (p8-p9) – The complainant is concerned that the stone was not installed over the entire width of the pre-existing sidewalk. I noted that this condition exists. The respondent stated that the stone was installed in a pattern and they realized there would need to be narrow (2”) cut marble on each side of the walkway if they covered the entire pre-existing sidewalk. The respondent states he consulted the complainant and asked what their preference was and suggested they cover the uncovered concrete with landscape rock. The complainant disagreed. There was Insufficient Evidence to determine what was/wasn’t agreed upon verbally. The contract does not specify. No further action is required.
• East Patio Bay Window Planter (p10-p11) – There appeared to be missing stones over portions of the pre-existing concrete. The respondent agreed this was an oversight and agrees to correct it. A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means.
• Loose Stones (p12-P13) – There were loose stones throughout the project. The respondent agreed to correct these items. Loose paver stones are unacceptable. The respondent should correct by appropriate means.
• East Pergola Lower Step (p14-p15) – The stones were again set over preexisting concrete. On the east lower step of the pergola, the pavers hung over the concrete with no mortar or other means of support. The respondent agree to correct this item. Edge restraints should remain stationary. The respondent should correct by appropriate means.
• East Pool Deck (p16-p17) – This area has sunk creating a tripping hazard and lippage exceeding 1/8”. Excessive deviations, dips or sags over short distances are considered unacceptable. There should be no more than 1/8” difference in height between adjacent pavers. The respondent should correct by appropriate means.
The respondent should correct by appropriate means (Those items specifically stated in the bulleted list).
Reference Picture(s) 2-18
Governing Rule: A.R.S. § 32-1154(A) (3), Violation of any rule adopted
by the registrar; Namely R 4-9-108(a): A contractor shall perform work
in a professional and workmanlike manner.
(All errors contained in the original)
On July 19, 2022, Mr. Nipp performed a Compliance Jobsite Inspection. In his notes regarding the same, Mr. Nipp noted the following:
Compliance Jobsite General Notes:
The Respondent, James Kahn, was present at the CJSI. The respondent stated he had not been allowed to return to correct any items on the written directive. The respondent forwarded a series of messages to me prior to the CJSI that he believed proved he had been denied access by the complainant. These messages can be found in the case file documents and are titled, 20220712_Email from respondent with Messages to complainant_2022-02693.
The complainant stated that he was afraid of the respondent. The complainant forwarded the emails from the respondent to me and stated that he did not reply because he does not use email and because he was afraid of the respondent. These messages can be found in the case file documents and are titled, 20220713_Email from complainant-Forwarded Emails_2022-02693. After the CJSI concluded, I asked the complainant’s daughter to help the complainant email me an explanation of why they did not respond to the respondent’s request to schedule repairs. I received that email on 07/19/2022 and it can be found in the case file documents and is titled, 20220719_Email from Daughter of complainant-Explanation of Denial of Access_2022-02693.
I reviewed the messages sent by the complainant and respondent. I found the respondent’s messages to be unprofessional, demanding payment prior to scheduling the directed repairs (which the complainant was withholding due to the poor work), and threatening in nature. I determined that the respondent’s messages did not represent a good faith effort to gain access.
I reviewed the email from the complainant’s daughter and noted that the complainant makes several other claims regarding the respondent’s behavior that has prompted their family to seek legal counsel. Their attorney has recommended they seek a restraining order against the respondent. I determined that the complainant has a level of fear of the respondent that appears, on the surface, to be justified.
Compliance Findings:
Compliance Item #2: The work he did do was poorly done
• Investigator’s Observation: Verified - There was no change to this compliance item noted at the 07/19/2022 CJSI.
The complainant pointed out several areas in the project that he believed were poor workmanship. I inspected the following areas and noted:
• There was no change to this compliance item noted at the 07/19/2022 CJSI.
Front walkway (p2-4) – Both sides of the walkway near the front door have sunk dramatically, causing lippage exceeding 1/8”. The stone in these areas are loose and move when stepped on. The concrete edge restraint is missing in these locations. The pre-existing concrete sidewalk was partially removed and stone set on top. Edge restraints should remain stationary. Excessive deviations, dips or sags over short distances are considered unacceptable. There should be no more than 1/8” difference in height between adjacent pavers. The respondent should correct by appropriate means.
• There was no change to this compliance item noted at the 07/19/2022 CJSI.
East Patio Bay Window Planter (p6, 8) – There appeared to be missing stones over portions of the pre-existing concrete. The respondent agreed this was an oversight and agrees to correct it. A contractor shall perform all work in a professional and workmanlike manner. The respondent should correct by appropriate means.
• There was no change to this compliance item noted at the 07/19/2022 CJSI.
Loose Stones (p2-13) – There were loose stones throughout the project. The respondent agreed to correct these items. Loose paver stones are unacceptable. The respondent should correct by appropriate means.
• There was no change to this compliance item noted at the 07/19/2022 CJSI.
East Pergola Lower Step (p9-10) – The stones were again set over pre-existing concrete. On the east lower step of the pergola, the pavers hung over the concrete with no mortar or other means of support. The respondent agree to correct this item. Edge restraints should remain stationary. The respondent should correct by appropriate means.
• There was no change to this compliance item noted at the 07/19/2022 CJSI.
East Pool Deck (p11-14) – This area has sunk creating a tripping hazard and lippage exceeding 1/8”. Excessive deviations, dips or sags over short distances are considered unacceptable. There should be no more than 1/8” difference in height between adjacent pavers. The respondent should correct by appropriate means.
Governing Rule: A.R.S. § 32-1154(A) (3), Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.
(All errors contained in the original).
On July 21, 2022, 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).
On or about July 25, 2022, Respondent timely submitted an Answer to the Registrar.
On or about August 8, 2022, a Notice of Hearing was issued setting a hearing on September 15, 2022 at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Nipp testified as to the Registrar’s involvement and the above timeline.
Investigator Nipp testified that when he completed the jobsite inspections, he noted that none of the corrective work had been performed.
Investigator Nipp testified that while Respondent made several attempts at communicating with Complainant to schedule the work, he believed that the attempts were not made in good-faith and were borderline threatening. Investigator Nipp testified that the tone of the e-mails was not appropriate and after consulting with the Registrar’s legal team, a decision was made to move forward with the Citation, and bring the matter to a hearing.
Complainant testified on his own behalf and presented the testimony of Evon Knodl, Chris Brooks, and Gene Olson. Complainant also filed many photographs of the project which were also admitted into evidence.
Complainant testified that there were loose stones which could be a hazard, and that Respondent would not come to fix the project unless he got paid first. Complainant testified that Mr. Kahn then started threatening him, his wife, his business, and threatened to put Complainant’s son in jail.
Complainant testified that some e-mails were threatening and that Mr. Kahn would call and that Complainant would hang up and not speak with him.
Mr. Brooks testified that while he does not work in landscaping nor is a licensed contractor, he observed that the project was not finished and that there were loose stones.
Mr. Olson testified that he does tile work and worked on Complainant’s pool. While he too was not licensed, he testified that he believed that the tile job needed to be re-done.
Mrs. Knodl testified that the job was really poorly done, as the stones were shaky. She testified further that Respondent used a totally different stone than what was originally agreed, and that there was no fountain which was discussed.
Respondent presented the testimony of Carie Kahn and James Kahn, and offered 29 exhibits into evidence.
Mrs. Kahn testified that the fountain installation was not part of the contract.
Mrs. Kahn also testified that while she agreed with the items listed in the Written Directive, Complainant would not allow her and her husband to perform the corrective work. She testified that Mr. Kahn would call every day, but Complainant would hang up.
Finally, Mrs. Kahn testified that Complainant never was voiced any concern with the project to her and she was at the jobsite 6 times.
Mr. Kahn testified that the contract price was $21,500.00 and Complainant made a 50% down payment ($10,750.00) on September 2, 2021.
Mr. Kahn admitted that the project ran behind right from the start because the pool had not been finished. He then went to work on other jobs while that was being completed, which then put the Knodl project further behind.
In addition, Mr. Kahn testified that the project was finished on February 23, 2022, and wanted to perform a walk-through with Complainant, but that Complainant wanted to wait until his wife came back from her trip. Further, Mr. Kahn testified that Complainant never said he was unhappy with the work.
Also, Mr. Kahn testified that there were some items which needed to be addressed as per the Written Directive, but that Complainant would not allow him to repair the same. Mr. Kahn testified further that while some of his later e-mails may have been rude, this was only because his initial e-mails and communications once the Directive was issued remained ignored by Complainant. He further explained that he was angry because he never received his other half of the contracted price.
Mr. Kahn testified that neither he nor his wife ever threatened Complainant or his family.
Administrative notice is taken of Respondent’s prior License record on September 29, 2022. Such prior License record reflects that Respondent’s License No. 324811 was first issued on June 17, 2019, and reflects that there was one 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 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 preponderance of the evidence established, and Mr. and Mrs. Kahn agreed that Respondent’s work was not in conformity with the Registrar’s standards. Specifically, the front walk had sunk dramatically, there were missing and loose stones in areas and area around the east pool deck had sunk, which created a tripping hazard. 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).
As to the issue regarding the corrective work, the evidence established that Respondent did not fail to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22). In reviewing the e-mail correspondence from Respondent to Complainant, the first several communications were appropriate in tone and showed a willingness to comply with the Directive. Further, as evidenced by the e-mails, and upon admission by Mr. Kahn, some of the tone in the communications increased, but justifiably so as the time to complete the repairs was running out, and there was zero communication from Complainant. Therefore, the tribunal finds that both Mr. and Mrs. Kahn made reasonable attempts to comply with the Directive, and Complainant chose to ignore the same. Therefore, Respondent is not 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. 324811 for a period of one day.
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.
-54864001
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-137160-45720000Done this day, September 29, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Daniel Knodl
[email redacted]
C & J Renovations LLC
DBA: HDK Landscape & Design
[email redacted]
By Miranda Alvarez
Legal Secretary -54864001
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-137160-45720000