ALJDEC - Licensing

2022A-04059-CHC-ROC · Registrar of Contractors · 2023-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Dale Masters,

COMPLAINANT

v.

Coues Ridge Construction LLC

License No. ROC 191530,

RESPONDENT

No. 2022A-04059-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 1, 2023, April 27, 2023 and July 7, 2023 with the record held open until August 3, 2023 for the submission of written closing arguments.

APPEARANCES: Complainant William Dale Masters was represented by Patricia Premeau, who appeared via Google Meet. Respondent Coues Ridge Construction LLC was represented by Nick Patton, who appeared via Google Meet. Registrar of Contractors Investigator Miles Crosby appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Coues Ridge Construction LLC (Respondent) is the holder of License No. 191530 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 12, 2020, William Dale Masters (Complainant) signed a contract with Respondent for construction of a residence in Vernon, Arizona. The contract amount was for $414,849.00.

On or about May 24, 2022, the Registrar received a Complaint containing twenty items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Miles Crosby. The jobsite inspection was performed on June 17, 2022.

Investigator Crosby then issued a Written Directive on or about June 24, 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 July 23, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - untreated and exposed wood both front and rear decks.

Investigator’s Observation: I observed there to be untreated and/or unsealed wood throughout both the front and rear decks. This does not meet minimum code.

Does not meet standards. Respondent should correct by appropriate means.

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 - floor feels loose and causes items in house hold to vibrate from walking

Investigator’s Observation: I observed the vibration in the floor to be excessive. The joist manufacture provides an in field solution for this indicating that despite the system being engineered there may be the need to stiffen the floor deflection.

Does not meet standards. Respondent should correct by appropriate means.

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: 7 - shingles have blow off and contractor denies any responsibility;

Investigator’s Observation: I observed the shingles to not be installed correctly. There were many areas where the shingles were placed that the shingle adhesive was not properly adhered. Many areas had nails not within the manufactures recommended nailing area. Multiple other areas had overlapping end joints which do not meet standards. During the inspection of the shingles I saw there were areas under the shingles that did not have properly installed minimum standard underlayment.

Does not meet standards. Respondent should correct by appropriate means.

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: 8 - barn doors for closet are not level and close on their own

Investigator’s Observation: I observed the closet doors to not meet the standard door opening height requirements.

Does not meet standards. Respondent should correct by appropriate means.

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: 9 - fan over range was not hung correctly requiring trim contractor used wrong type of trim to cover up

Investigator’s Observation: I observed the exhaust fan assembly not installed correctly. Exhaust assembly had trim work done to hide the gaps due to the incorrect installation. The trim work also did not meet standards.

Does not meet standards. Respondent should correct by appropriate means.

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: 15 - Closet rods for hanging clothes have not been installed correctly, making using hanger difficult at best;

Investigator’s Observation: I observed the closet hanging rods to not be installed to minimum standards and did not allow enough space for a standard clothes hanger to be placed on or removed from the rods.

Does not meet standards. Respondent should correct by appropriate means.

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: 16 - exterior siding has gaps not calked

Investigator’s Observation: I observed the siding to not be installed correctly. There are multiple methods of joint protection with siding of this type, none were utilized.

Does not meet standards. Respondent should correct by appropriate means.

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: 18 - shower door will not close

Investigator’s Observation: I observed the shower door to be dragging in areas due to the clearance being too tight.

Does not meet standards. Respondent should correct by appropriate means.

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: 19 - Doorway height for barn doors. I believe them to be to low

Investigator’s Observation: I observed the door ways to not be within industry standard minimum door height. Does not meet standards. Respondent should correct by appropriate means.

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: 20 - The way the boards for the deck are secured to the house. I do not believe they are properly installed

Investigator’s Observation: I observed the deck to be correctly secured to the main residence structure by the use of the proper rim board. No correction needed.

However the deck was not properly secured to the piers. I observed the connection ties, which were placed in the concrete piers to not be in the correct locations and were bent in a z shape to accommodate the incorrect placement and attach to the girder(s). These connections do not meet the Manufactures installation recommendations. Also many were not properly seated on the piers.

Does not meet standards. Respondent should correct by appropriate means.

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.

(All errors contained in the original).

The Written Directive was then amended to allow Respondent to comply with the Directive by August 27, 2024.

A Complainant Jobsite Inspection was conducted on September 12, 2022. In his notes regarding the same, Investigator Crosby noted the following:

...

The Respondent throughout this process did not act in a professional manner advising the Complainant that he would only get a small fine if he did not comply with the Directive. The Respondent scheduled many times with the Complainant, who made sure they were available, only to have the Respondent not show. The Qualified Party for the Respondent did not go to the Complainants house to inspect any work the employees had done and which made many of the corrected items to be in a worse state. i.e. the closet door trim is very poor. The deck material was removed to apply protection to the joists but the decking was installed too tightly to one another causing bulging at the deck joints due to the expansion of materials. This will ultimately cause unneeded stress to the joists at the deck joints and may cause premature failure. Some of the joints are already cracking from the stress as indicated by the photos.

Compliance Findings:

...

Compliance Item: 2 - untreated and exposed wood both front and rear decks.

Investigator’s Observation: This item was NOT corrected properly due to the decking boards being replaced without the proper minimum distance between each other causing lift at the Butt Joints.

Governing Rule:

...

Compliance Item: 5 - floor feels loose and causes items in house hold to vibrate from walking

Investigator’s Observation: I observed this item to be corrected by appropriate means.

Compliance Item: 6 - rear screen doors are uneven and don't match

Investigator’s Observation: Item was corrected

Compliance Item: 7 - shingles have blow off and contractor denies any responsibility;

Investigator’s Observation: Respondent did not use a licensed roof contractor for initial installation. Respondent did not correct the lifting shingles or replace lifting shingles.

Compliance Item: 8 - barn doors for closet are not level and close on their own

Investigator’s Observation: This item was corrected

Compliance Item: 9 - fan over range was not hung correctly requiring trim contractor used wrong type of trim to cover up

Investigator’s Observation: Respondent made no attempt to correct.

...

Compliance Item: 15 - Closet rods for hanging clothes have not been installed correctly, making using hanger difficult at best;

Investigator’s Observation: This item was corrected.

Compliance Item: 16 - exterior siding has gaps not calked

Investigator’s Observation: This item was not corrected to standards.

...

Compliance Item: 18 - shower door will not close

Investigator’s Observation: This Item was corrected.

Compliance Item: 19 - Doorway height for barn doors. I believe them to be to low

Investigator’s Observation: Respondent did not correct the doors to minimum standards. The doors were raised to minimum height and did not match height of all other doors. 78’’ vs 80’’. This meets minimum standards however, the trim work was very poor and was not corrected properly.

Compliance Item: 20 - The way the boards for the deck are secured to the house. I do not believe they are properly installed

Investigator’s Observation: Respondent made no attempt to correct.

(All errors contained in the original).

On September 22, 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); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about October 6, 2022, Respondent timely submitted an Answer to the Registrar.

On or about November 1, 2022, a Notice of Hearing was issued setting a hearing on December 7, 2022, at the Office of Administrative Hearings, an independent state agency.

After several continuances the hearing was held on March 1, 2023, April 27, 2023 and July 7, 2023.

At hearing, Investigator Crosby testified as to his involvement and the above timeline.

Investigator Crosby testified as to the corrective work which had been performed as well as which work had not.

As to the roof, Investigator Crosby testified that Respondent had used an unlicensed roofing contractor on the job. He further testified that roof shingles were falling off as they were not laid properly or had no or improper adhesion. Further, there were many exposed nails on the roof. Investigator Crosby also testified that Mr. Binnie accepted no responsibility for the roof and did not inspect the roof once the repairs were made.

As to the decking issue, Investigator Crosby testified that once the decking was reinstalled, the planks were put back too closely together which caused buckling.

In addition, Investigator Crosby testified that the trim around the range fan had a gap, and while the barn doors were raised to an appropriate height, the trim work around the repair of the same was damaged.

With regard to the siding, Investigator Crosby testified that there were gaps and areas were not properly caulked, and per industry standards, this was incorrect.

Investigator Crosby also testified that the securing of the boards under the deck were incorrect as the strap was bending.

Finally, Investigator Crosby testified that if there was a modification done by a third party, it would only have been to a specific area and that the Registrar would not expect Complainant to wait to suffer continued damage to its property while waiting for repairs.

Complainant testified on his own behalf. He testified that when Mr. Binnie denied responsibility, he filed the complaint.

As to the roof, Complainant testified that he began to notice problems three to five months after moving in. Complainant testified that he could see shingles flapping, and informed Mr. Binnie of the same. Complainant also denied that he damaged the shingles, and that they all had blown loose. Mr. Binnie did not come out to view the roof and stated it was the manufacture’s fault. After Mr. Binnie did not make any further repairs, Complainant hired another company to repair the roof.

As to the decking, Complainant testified that while the corrective work was done to seal the same, but when they re-installed the planks it caused cracking.

Complainant also testified that the wood trim around the fan was separating and that Respondent had agreed to install metal trim, but never did.

As to the exterior siding, Complainant testified that Respondent completed some of the gaps, but not the majority.

Complainant also testified that the barn door height was corrected, however the trim was not repaired correctly to adjust for the change in height.

Further, Complainant testified that deck was not screwed to the piers and that no corrective work had been performed.

Complainant testified that he gave Respondent time extensions, which the Registrar granted, but that Respondent always waited until the end to fix the issues.

Respondent presented the testimony of Kenny Garvin, Miguel Ramirez, Eric Trottier and Buck Binnie.

Kenny Garvin was the owner of Garvin Enterprises, LLC dba KGJ Roofing. Mr. Garvin inspected the roof and prepared a report regarding his findings. Mr. Garvin testified that he could not see the initial nail patterns only the repairs because the shingles were laid properly and did not see any lifting of the shingles. Mr. Garvin also testified that a couple of the shingles did not seem to adhere, but it would not require a complete replacement of the roof. Mr. Garvin also testified that while the roof was installed to standard practices in the White Mountain area, the roof was a good roof but not a perfect roof. On cross-examination, Mr. Garvin testified that there was nothing a roofer could do to prevent wind damage. As to the nails, while they were not according to the nail pattern on the manufacturer’s instructions, there were more nails which were still in the zone and should have helped to prevent any wind damage.

Miguel Ramirez had worked with Respondent for approximately two and half years and did a little bit of everything for Respondent. Mr. Ramirez testified that he was not a licensed contractors and received a 1099 form for the payments he receives.

Mr. Ramirez testified that the trim around the vent over the stove was due to a choice made by Complainant’s wife, and made no repairs to the same. Mr. Ramirez also testified that he was aware of the floor vibration, and installed other beams crossways to minimize the same. As to the decking, while it appeared to be buckling, Mr. Ramirez testified that is was not necessarily due to poor installation. Further, the buckling could be because of the outside temperature when the picture was taken.

As to the siding, Mr. Ramirez testified that Investigator Crosby said the siding was incorrect so he used caulk to fill the bigger gaps, and that he told Investigator Crosby that the siding had to have gaps to allow for possible expansion.

Mr. Ramirez also testified that Mr. Binnie was present when he was doing the corrective work, but did not remember if he showed Mr. Binnie the corrective decking work.

Brian Trottier testified that he installed the roof with one other person. Mr. Trottier also testified that he was not a licensed contractor. Mr. Trottier testified that helped lay the underlayment and he believed there were no gaps in the installation of the same. To make the repairs he had to cut back some of the underlayment but made a full replacement. Mr. Trottier also testified that it appeared as if some of the shingles were being pulled up by someone’s fingers. Further, Mr. Trottier testified that the roof was appropriately installed, and that if shingles failed to adhere it would be a manufacturer’s defect. Mr. Trottier testified that he always installed shingles with a five nail pattern because it was a higher wind rating. Mr. Trottier admitted however that he did not look at the nail pattern for this roof.

Buck Binnie was Respondent’s owner. He testified that he had no W-2 employees. He also testified generally that he fixed all locations pointed out by Investigator Crosby, and looked for other ones. Mr. Binnie also testified that if given the opportunity he would still go back to the house to fix the remaining issues.

As to the decking issue, Mr. Binnie testified that this was fully repaired and any gaps in the planks were required because of possible expansion, and that he was not aware that the gaps were an issue until after the compliance jobsite inspection.

Mr. Binnie testified that as to the roof issue, he never refused to fix the same as he paid for three repairs, but that the manufacturer should share in the responsibility. In addition, Mr. Binnie testified that he believed the roof was installed correctly but not perfectly. However, Mr. Bininie testified that he contacted the manufacturer but never received a call back.

As to the fan trim in the kitchen, Mr. Binnie testified that because the fan overlapped the granite, it created a gap, however this was the homeowner’s choice. Mr. Binnie also testified that the homeowner wanted the stainless steel trim after the Directive and while he tried to find the same, he was unsuccessful.

Mr. Binnie testified that as to the exterior siding, any gap over one-eighth of an inch was caulked per agreement and that again some gaps were needed due to possible expansion due to weather.

As to the barn door, Mr. Binnie acknowledged that there were some doors which were lower than the minimum height, so he raised the doors. Further, as to the trim work around the same, Mr. Binnie testified that he was never given an opportunity to go back and repair the same.

Mr. Binnie further testified about the boards being secured to the house, and that he believed that they were properly secured, but did not provide Investigator Crosby with any manufacturer’s specifications proving they were properly secured.

In closing arguments, Complainant argued that Respondent’s conduct warranted a revocation of its license, while Respondent argued that its work met minimum standards, and did not aid/abet unlicensed contracting, and complied with the contract requirements.

Administrative notice was taken of Respondent’s prior License record on August 21, 2023. Such prior License record reflected that Respondent’s License No. 191530 was first issued on January 7, 2004, and reflected that there was 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The evidence demonstrated that there was untreated and exposed wood in both the front and rear decks; the flooring on the inside was loose causing vibration; the rear screen doors were uneven and did not match; shingles were coming loose from the roof; the barn doors were at the incorrect height; the fan over the range was incorrectly hung with an incorrect type of trim; closet rods were not installed correctly; exterior siding had gaps which were not caulked; shower doors would not close; the securing of the deck boards to the house was incorrect; 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 preponderance of the evidence also established that Respondent was in violation of A.R.S. § 32-1154(A)(9)(a) as at least two of the workers, Messers. Ramirez and Trottier testified that they were unlicensed, and would provide their own tools and be paid per project.

There was no evidence presented as to whether the parties contract was in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158, therefore the tribunal finds no violation of the same.

The evidence established that Respondent failed to fully complete the corrective work following the Directive being issued as to the deck as it was wavy; the roof had issues with the shingles and were either installed incorrectly or did not properly adhere (which would still be Respondent’s responsibility to ensure that a manufacturer’s representative was brought in to inspect and/or offer its opinion); the trim around the fan over the stove did not match and there was no change order provided at hearing to demonstrate that Complainant wanted the fan at that height; trim around the barn doors was not workmanlike and further, Respondent was not entitled to even more time to correct, as it should have been properly repaired during the corrective work period. 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). As to the height of the barn doors, this item was corrected. And finally, as to the exterior siding gaps, the evidence presented established that all gaps in excess of an eighth of an inch were caulked in. Therefore, there is no violation of A.R.S. § 32-1154(A)(22) for those two items.

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. 191530 for a period of twenty days.

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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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, August 21, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Patricia A Premeau

Nearhood Law Offices, PLC

7537 E. McDonald Dr.

Scottsdale, AZ 85250-6063

[email redacted]

Nick D. Patton

Nick D. Patton, Attorney at Law, PLLC

2707 S. White Mountain Road, Suite L

Show Low, AZ. 85901

[email redacted]

By: OAH Staff