ALJDEC - Licensing

2022A-07128-CHC-ROC · Registrar of Contractors · 2023-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Winters,

COMPLAINANT

Affordable Craftsmen Construction LLC

License No. ROC 211197,

RESPONDENT

No. 2022A-07128-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 28, 2023

APPEARANCES: Complainant Patricia Winters appeared via Google Meet. William Cook appeared via Google Meet on behalf of Respondent Affordable Craftsman Construction. Registrar of Contractors Investigator Albert Bernal.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Affordable Craftsmen Construction LLC (Respondent) is the holder of License No. 211197 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 20, 2022, Patricia Winters (Complainant) agreed to have Respondent install a pergola with a concrete slab at her residence. The total cost was to be $17,500.00.

On or about August 17, 2022, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Albert Bernal. The jobsite inspection was performed on October 12, 2022.

Investigator Bernal then issued a written directive on or about October 25, 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 November 18, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Slab is wrong lower that grade.

Investigator’s Observation: I was shown the concrete slab in question. I place a level on the top surface and it had positive fall away from the house. I placed a level across the top of the back patio slab and the new Ramada slab and they were at the same height at that elevation point. I observe that the slab was not lower that any grading points (existing grade) shown to me at this Jobsite Inspection.

Governing Rule: N/A

Compliance Item: 2- slab was not 3 1⁄2” on sections over the footing areas. This Complaint item was added at the jobsite Inspection.

Investigator’s Observation: I was shown an area over the column footing where the concrete slab was not consistent at 3 1⁄2” in thickness. Concrete slab should be consistent in thickness at 31⁄2”. Respondent shall correct by the appropriate means.

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

Compliance Item: 3 - Paint and stucco on new slab

Investigator’s Observation: I was shown areas on the Ramada concrete slab that had overspray and stucco residue on the surface. Stucco residue and overspray paint should be removed from the concrete slab. Respondent shall correct by the appropriate means.

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

Compliance Item: 4 - pillar stucco not right third time fixing

Investigator’s Observation: I noted various areas of the stucco of the Ramada columns that were chipped. Respondent is aware of the issues and agreed to correct it. Respondent shall correct by the appropriate means.

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

Compliance Item: 5 - stucco needs repairing on house

Investigator’s Observation: There was a section of stucco at the bottom of the Arizona Room wall that was exposed by the Respondent while removing dirt that was against it to be able to layout the Ramada concrete slab. This damaged the stucco in the area in question. I noted that there were also lines (Red chalk lines) on the wall surface at the bottom of the wall on the stucco. The damage stucco areas have to be corrected, and the chalk lines removed from the wall surface. Respondent is aware of the issues and agreed to correct them. Respondent shall correct by the appropriate means.

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

Compliance Item: 6- Container on patio need to be replace

Investigator’s Observation: I was shown a plastic container (storage bin) located in the backyard that was over sprayed with paint. Contractor is aware of the issue and agreed to correct it. Respondent shall correct by the appropriate means

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

Compliance Item: 7 - all stucco still need to be primed

Investigator’s Observation: I noted that the Ramada columns were not painted. Stucco columns should be finished paint. Respondent is aware of the issue and agreed to correct it. Respondent shall correct by the appropriate means.

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

Compliance Item: 9 - finished on slab is very bad

Investigator’s Observation: I was shown various sections of the concrete slab that were chipped. Respondent is aware of these areas and agreed to correct them. Respondent shall correct by the appropriate means

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

(All errors contained in the original).

On November 23, 2023, Investigator Bernal conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Bernal found:

...

*There were marks /stains (brown in color and circle shapes) were present in a section of the back side of the concrete slab. This marks /stains were present at the time of the Jobsite inpection as well.

A brown plastic storage contatiner was placed on top of the concrete slab by the Complainant.

Compliance Findings:

Compliance Item: 2- slab was not 3 1⁄2” on sections over the footing areas. This Complaint item was added at the jobsite Inspection.

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

Incomplete: areas of the concrete slab by the column footing (back right side) were 2 3⁄4’” to 3” thick and they were not consistent with the rest of the slab areas at 3 1⁄2” in thickness.

Compliance Item: 3 - Paint and stucco on new slab

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

Complete

Compliance Item: 4 - pillar stucco not right third time fixing

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

Complete

Compliance Item: 5 - stucco needs repairing on house

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

Complete

Compliance Item: 6- Container on patio need to be replace

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

Incomplete: Container had overspray paint on the surface.

Compliance Item: 7 - all stucco still need to be primed

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

Incomplete: Stucco Columns were painted, however the stucco on the top of two columns (Back middle column and right front side column) were not painted.

Compliance Item: 9 - finished on slab is very bad

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

Complete.

(All errors contained in the original).

On February 22, 2023, 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 March 7, 2023, Respondent e-mailed an Answer to the Registrar.

On or about March 27, 2023, a Notice of Hearing was issued setting a hearing on April 28, 2023, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Bernal testified as to the Registrar’s involvement and the above timeline.

Investigator Bernal testified that Respondent failed to complete items 2, 6, and 7, and believed that 24 days was sufficient time to make all of the corrections on the Written Directive.

Complainant testified on her own behalf and submitted nine exhibits into evidence.

Complainant testified that the project started last April and has lost a year of use and enjoyment of her backyard. She testified further that she has now had the concrete slab replaced, the columns were re-painted and had the stucco repaired. However, Complainant testified that the storage bin was not cleaned or repaired despite the Directive requirements.

In addition, Complainant testified that she paid $5,913.95 to make the repairs, but that she still owed Respondent $2,836.05.

Finally, Complainant testified that Mr. Cook did not handle the job in a professional manner and was seeking discipline on Respondent’s license.

William Cook testified on behalf of Respondent and submitted 15 exhibits into evidence.

Mr. Cook testified that he believed that Complainant had a problem with him from the beginning of the projects and was angry at him.

In addition, Mr. Cook testified that towards the end of the project, there was a wind storm which blew the protective plastic off which caused some overspray on the slab.

As to the Directive items, Mr. Cook testified that he patched the slab to even out the thickness in Item 2, but somehow the patch was gone when Investigator Bernal came for Compliance Jobsite inspection. Mr. Cook admitted that the plastic storage container (Item 6), was not repaired or replaced. Also, Mr. Cook admitted that the stucco on the top of two of the columns were not painted due to an oversight.

Finally, Mr. Cook testified that he did not want to lose his license.

Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 211197 was first issued on September 6, 2005, and reflected 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 that Respondent’s work was not in conformity with the Registrar’s standards. The concrete slab had inconsistent thickness, there was paint overspray and stucco residue on the slab, the stucco on the pillars was chipped, there wasdamaged stucco on the Arizona room wall, the plastic container had overspray paint on it, the stucco still needed to be primed, and finally the slab had chips contained throughout. 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).

The evidence established Respondent failed to complete the corrective work for the stucco priming, the container replacement/repair, and the slab thickness, following the Directive being issued. 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).

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. 211197 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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, May 12, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Affordable Craftsmen Construction LLC

7460 E Kilarea Ave

Mesa, AZ 85209

[email redacted]

Patricia Winters

425 S Rosemont

Mesa, AZ 85206

[email redacted]

By: OAH Staff