ALJDEC decisions subject to certification as final

2022A-04724-CHC-ROC · Registrar of Contractors · 2022-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Greg M Carter,

COMPLAINANT

Fluger Renovations Inc.

License No. ROC 310289,

RESPONDENT

No. 2022A-04724-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2022

APPEARANCES: Complainant Greg M. Carter appeared via Google Meet on his own behalf. Henry Fluger appeared via Google Meet on behalf of Respondent Fluger Renovations Inc. David Fagenburg, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Fluger Renovations Inc. (Respondent) is the holder of License No. 310289 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 13, 2022, Greg M. Carter (Complainant) signed a contract with Respondent for renovation of his manufactured home. The contract amount was for $27,379.00.

On or about June 9, 2022, the Registrar received a Complaint containing six items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Fagenburg. The jobsite inspection was performed on July 8, 2022.

Investigator Fagenburg then issued a written directive on or about July 20, 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 Monday August 8, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 4: Master Bedroom: Owner stopped work at drywall hanging, due to poor workmanship and improper installation. Staples and glue used, instead of drywall screws or nails.

Investigator’s Observation: Verified. The respondent is to correct the mismatched thicknesses of drywall at multiple locations by appropriate means and complete the project per contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 5: Contractor used multiple pieces of drywall instead of full sheets.

Investigator’s Observation: Verified. The respondent is to correct the drywall installed using small pieces instead of full sheets by appropriate means and complete the project per contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

On August 17, 2022, Investigator Fagerburg conducted a Compliance Jobsite Inspection. Investigator Fagerburg noted the following:

Compliance Findings:

Compliant Item 4: Master Bedroom: Owner stopped work at drywall hanging, due to poor workmanship and improper installation. Staples and glue used, instead of drywall screws or nails.

Investigator’s Observation: The respondent replaced the drywall with mismatched thicknesses, applied tape, mud and texture at the master bedroom. Due to continued conflicts between the 2 parties the respondent refuses to continue working and claims a hostile environment. The master bedroom walls have not been sanded or painted along with other door installations. The project is not complete.

The respondent is not incompliance with the directive.

Compliant Item 5: Contractor used multiple pieces of drywall instead of full sheets.

Investigator’s Observation: The respondent removed and replaced the small pieces of drywall with 1 sheet at 2 locations applied tape, mud and texture at the master bedrooom. Due to continued conflicts between the 2 parties the respondent refuses to continue working and claims a hostile environment.

The project is not complete.

The respondent is not in compliance with the directive.

On August 23, 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 September 6, 2022, Respondent e-mailed an Answer to the Registrar.

On or about September 27, 2022, a Notice of Hearing was issued setting a hearing on November 1, 2022, at the Office of Administrative Hearings, an independent state agency.

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

Investigator Fagerburg testified the initial work was not up to workmanship standards as some of the drywall was hung in pieces rather than full sheets.

Investigator Fagenburg also testified that during the corrective work period, Mr. Fluger contacted him to inform him that there was a hostile work environment. Mr. Fluger indicated that he was not going to complete any further work because he could not work under those circumstances.

Finally, Investigator Fagerburg testified that he could not verify that Complainant was creating a hostile work environment. However, Investigator Fagerburg acknowledged that during the compliance inspection, there was some tension between the parties as they could not agree as to the method of completion.

Complainant testified on his own behalf. Complainant was a Construction Progress Monitor for various banks, and had over 50 years in the construction industry.

Complainant testified that the mismatched pieces of drywall were not acceptable, and also believed that based upon his experience, using staples to fasten the drywall was not an acceptable practice.

Complainant also testified that there was tension between the parties, and at times, things got heated between the parties. Complainant also testified that if Mr. Fluger was not going to correct the drywall properly, he would not be allowed to continue with the project.

Henry Fluger testified on behalf of Respondent.

Mr. Fluger admitted that the use of mismatched drywall pieces was not proper. Mr. Fluger testified that was short-handed, so a neighbor of his helped him, and it was the neighbor who used the scrap pieces of drywall. Mr. Fluger testified that when he came back to the jobsite, Complainant yelled at him, but he told Complainant that it would be fixed using full sheets, which it was.

Mr. Fluger also testified that he initially used staples to fasten the drywall, as they would not crack the thin wood of the trusses, and that staples were recommended for mobile homes. However, when he replaced the drywall with full sheets, he affixed the same with nails.

Mr. Fluger also testified that Complainant told him, “I’m never going to be satisfied with the work. I’m going to take your license.”

Administrative notice is taken of Respondent’s prior License record on November 15, 2022. Such prior License record reflects that Respondent’s License No. 310289 was first issued on December 5, 2016, and reflects that there is 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 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. Fluger admitted, that it was not proper to use the mismatched drywall. 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 corrective work, the tribunal finds that Mr. Fluger properly replaced the drywall with full sheets and affixed the same with nails instead of staples. The evidence also established that the walls had not been sanded or painted or finished the installation of the door. Mr. Carter also admitted he got angry, and there was tension between the parties, and was not going to allow Mr. Fluger to continue if the project was not done correctly. Therefore, the tribunal finds that Mr. Fluger was subjected to a hostile work environment and was not allowed to properly finish the project without interference from Complainant. Therefore, Complainant has not 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).

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. 310289 for a period of two days.

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.

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-137160-45720000Done this day, November 15, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Fluger Renovations Inc.

7321 W Pioneer St

Phoenix, AZ 85043

[email redacted]

Greg M Carter

P.O. Box 31252

Phoenix, AZ 85046

[email redacted]

By Miranda Alvarez

Legal Secretary

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001

-137160-45720000