ALJDEC decisions subject to certification as final

2022A-05886-CHC-ROC · Registrar of Contractors · 2022-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kirk Karl Nielson ,

COMPLAINANT

Method Construction LLC

License No. ROC 273092,

RESPONDENT

No. 2022A-05886-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 14, 2022, 9:00 A.M.

APPEARANCES: Complainant Kirk Nielsen appeared on his own behalf; Adrian Wilson, member of Respondent, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Method Construction, LLC (Respondent), is the holder of License Number 273092 issued by the Registrar of Contractors (Registrar).

2. On or about July 18, 2022, Kirk Nielsen (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with construction of a condominium in Chandler, Arizona (“project”).

3. The Registrar performed an inspection of the project on August 18, 2022. Thereafter, the Registrar issued a Directive, dated August 22, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 9, 2022, as follows:

Complaint Item No. 3: Paint exterior – poor finish – poor work.

Investigators Observation: Exterior of the home has poor paint coverage and appears very thin in many locations. Exterior of the home also has stucco cracks. The cracks do not meet the workmanship standard of 1/16 inch however are excessive with cracks in many locations every 16 to 20 inches.

*Correct excessive stucco cracks and paint exterior of home for good paint coverage.

Complaint Item #4: Driveway pavers – chipped areas.

Investigators Observation: The driveway pavers are what are called tumbled pavers so they do have edges and corner chips. However, 12 to 15 pavers were observed that had larger broken or missing corners that need to be replaced.

*Replaced installed damaged pavers.

Complaint Item #6: Shower tile uneven – poor work – lippage.

Investigators Observation: Observed minor lippage. Nothing greater than the allowed 1/32. Homeowner also had issues with missing or irregular grout.

*Correct locations of missing grout.

Complaint Item #7: Ceiling cracks – structural.

Investigators Observation: Observed ceiling cracks of the corner at the back of the house and across hallway. Unable to determine any structural issues.

*Correct ceiling cracks and repaint.

4. After being informed that Respondent had not performed any corrective work, the Registrar then issued a Citation to Respondent, dated September 14, 2022, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for November 14, 2022, at 9:00 A.M.

6. At the November 14, 2022, hearing, Complainant Kirk Nielson testified on his own behalf. Respondent presented the testimony of Adrian Wilson, Member of Respondent. Jack Grimm, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that that none of the Directive items were corrected. He further testified that Respondent requested additional time to perform corrective work, and indicated he replied that he was willing to consider the extension if some progress had been made by Respondent in completing the Directive items. He indicated he heard nothing further from Respondent in that regard.

8. Complainant Kirk Nielson testified that he had supplied a punch list to Respondent but that none of the items were taken care of. He acknowledged that Respondent requested additional time to perform corrective action, and said he responded with alternative dates but never received a reply. He further stated that he did not grant an extension because he was frustrated with the entire project.

9. Adrian Wilson, Member of Respondent, testified on behalf of Respondent that Respondent is not currently operating. He further testified that it was difficult to schedule subcontractors to perform the corrective work, and requested additional time which was denied. Respondent did not dispute any of the Directive items.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

5. With regard to above-referenced violation of a rule adopted by the Registrar under A.R.S. § 32-1154(A)(3), the rule claimed in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. Violation of A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The testimony of the Investigator and the photographs from the job inspection persuades the Tribunal that the work was nor performed in a workmanlike manner. Respondent did not dispute the Directive items or present any contrary evidence that the work was performed in in a professional and workmanlike manner.

7. Violation of A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. There was no evidence presented that Respondent performed any corrective work, or any evidence of a valid justification for not doing so. The Tribunal does not consider Respondent’s request for additional time to perform corrective action, which Respondent did not follow up on, to be a valid justification.

8. In conclusion, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Method Construction, LLC’s, License Number 273092 is suspended for two days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 the outstanding prior civil penalty.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, December 2, 2022.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Jeffrey Fleetham, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Kirk Karl Nielson

2777 W. Queen Creek Rd.

Chandler, AZ 85248

[email redacted]

Method Construction, LLC

14988 N. 78th Way, Ste. 103

Scottsdale, AZ 85260

[email redacted]

By Miranda Alvarez

Legal Secretary

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