ALJDEC - Licensing
2023A-01778-CHC-ROC · Registrar of Contractors · 2023-08-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kathleen Maison
COMPLAINANT,
v.
Matrix Construction, LLC
License No. ROC 328972,
RESPONDENT.
No. 2023A-01778-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 23, 2023, with the record held open until July 14, 2023, for the sole purpose of allowing Complainant to submit exhibits into the record.
APPEARANCES: Complainant Kathleen Maison appeared on behalf of herself. Timothy Meyers appeared on behalf of Respondent Matrix Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about August 26, 2021, Complainant Kathleen Maison and Respondent Matrix Construction, LLC entered into a residential remodeling contract for the amount of $146,075. Complainant paid Respondent $136,075 pursuant to the contract.
2. Timothy Meyers is the qualifying party for Respondent.
3. On or about September 25, 2021, Respondent started work.
4. On or about January 25, 2023, Respondent stopped work.
5. Complainant filed a complaint with the Registrar of Contractors alleging poor workmanship on the part of Respondent.
6. On or about February 23, 2023, Registrar Investigator Joey Chester
conducted a job-site inspection. Investigator substantiated complaint items 1, 2, 4, 5, 7, 9, 10, 11, 12, and 13. Investigator Chester did not substantiate complaint items 3, 6, 8.
7. Investigator Chester’s job-site investigation notes provided, in relevant part, as follows:
Complaint Item 3: Poor Installation of flooring – repair of all flooring throughout the home where there is cupping and bubbling
Investigator’s Observation: This is a materials issue, not a workmanship issue. The ROC has no jurisdiction over materials manufacturers. Respondent will take over ownership of concern. Governing Rule: N/A
8. On March 2, 2023, the Registrar issued a Directive to Respondent that provided, in relevant part, 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 March 22, 2023.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Dishwasher – high loop to be installed Investigator’s Observation: During inspection loop was installed in front of plumbing will need to be moved to behind the plumbing, respondent to fix by appropriate means. Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 2: Anti tip bracket to be installed.
Investigator’s Observation: At time of inspection anti tip not installed as discussed by homeowner, respondent to fix by appropriate means
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 4: Fire rated wall to be installed in garage
Investigator’s Observation: At time of inspection two walls needs to be equipped with fire rated walls, respondent to install by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 5: Interior floor should not be flush with exterior ground. There is also a visible gap below the threshold. To be repaired.
Investigator’s Observation: During inspection front door threshold flexed and not secured, respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 7: Electrical shut-off to be installed.
Investigator’s Observation: During inspection respondent stated shutoff can be either in water closet or outside on breaker, respondent to fix by appropriate means which way homeowner chooses.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 9: Drain stopper to be installed
Investigator’s Observation: At time of inspection master bath sink drain stopper no hooked up, Respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 10: Junction box covers missing
Investigator’s Observation: During inspection both parties indicated missing plate to junction box, respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 11: Repair double tapped breaker
Investigator’s Observation: During inspection noticed multiple wires going into one breaker, respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item 12: GFCI outlets to be installed, top plug in laundry doesn’t work.
Investigator’s Observation: During inspection outlet in kitchen needs to be GFCI and top plug of outlet in laundry doesn’t work, respondent to fix both outlets by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards Complaint Item 13: Dryer to be properly ventilated
Investigator’s Observation: At time of inspection dryer not ventilating properly, respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 3: Poor Installation of flooring – repair of all flooring throughout the home where there is cupping and bubbling
Investigator’s Observation: This is a materials issue, not a workmanship issue. The ROC has no jurisdiction over materials manufacturers. Respondent will take over ownership of concern
Governing Rule: N/A
Complaint Item 6: The overhang added is not properly supported. Investigator’s Observation: Complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Governing Rule: N/A Complaint Item 8: Pipe termination to be installed Investigator’s Observation: Complaint item had been completed prior to this JSI Governing Rule: N/A
9. On April 14, 2023, Investigator Chester conducted a compliance job-site inspection to determine whether Respondent had complied with the Directive. Investigator Chester’s notes regarding the investigation showed that Respondent failed to correct the following items:
Compliance Findings: At time of compliance inspection these complaint items below have not been take care of, any other items that was on the directive that are not on this sheet have met minimum workmanship standards and are complete.
Complaint Item: Fire rated wall to be installed in garage Investigator’s Observation: During inspection wall was not complete, trim pieces still needed to be installed.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item: Interior floor should not be flush with exterior ground. There is also a visible gap below the threshold. To be repaired.
Investigator’s Observation: At time of inspection threshold was not properly fixed, needs to be removed and support added from underneath threshold.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item: Drain stopper to be installed
Investigator’s Observation: During inspection one of the drain stoppers not working properly.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item: Junction box covers missing
Investigator’s Observation: During inspection multiple boxes in attic were not covered.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards
Complaint Item: insufficient Insulation in attic (concern acknowledge during first inspection)
Investigator’s Observation: During inspection investigator witnessed multiple areas in attic insufficient of insulation. No insulation has been added since initial inspection.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
10. Inspector Chester took photographs of the deficient complaint items.
See the Registrar’s administrative record, pgs. 40-52.
11. On April 12, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3),(22), and Arizona Administrative Code R4-9-108(A).
12. Mr. Meyers filed a timely answer to the Citation. Mr. Meyers addressed the items that Investigator Chester alleged were out of compliance. See the Registrar’s administrative record, pg. 147.
13. Through the answer, Mr. Meyers notified the Registrar that Respondent did not address the issue of “insufficient insulation in the attic” because the item was not listed in the Directive. See the Registrar’s administrative record, pg. 147.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. A hearing was held on June 23, 2023.
16. At hearing, Ms. Maison testified on behalf of herself and presented the testimony of Brian Gentner and Tom Maison. Investigator Chester testified regarding his investigation of the complaint. Timothy Meyers testified on behalf of Respondent.
17. Ms. Maison explained that Respondent performed poor work when it remodeled her home. Ms. Maison also contended that Investigator Chester should have substantiated her complaint regarding the defective flooring. Investigator Chester testified consistently with his job-site inspection notes and the Directive. Mr. Meyers asserted that Respondent appropriately corrected the items listed in the Directive. However, Mr. Meyers provided no other supporting evidence.
18. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on August 3, 2023. Respondent’s license record shows that its licensed was issued on May 20, 2020 and that there is only one open complaint against Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and a civil penalty.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 a preponderance of the evidence. See A.A.C. R2-19-119.
3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. The preponderance of the evidence does shows that Respondent failed to perform work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The Administrative Law Judge makes no conclusions of law regarding the allegation of poor work in connection with complaint item 3 and “insufficient insulation in the attic”, because those items were not included in the Directive.
7. The preponderance of the evidence shows that Respondent appropriately
corrected complaint items complaint items 1, 2, 3, 7, 11, and 12 of the items listed in the Registrar’s Directive.
8. The preponderance of the evidence shows that Respondent failed to
correct complaint items 4, 5, 9, and 10 of the items listed in the Registrar’s Directive without valid justification, which is a 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 Matrix Construction LLC License No. ROC 328972 for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that 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 3, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada
Registrar of Contractors
[email redacted]
Matrix Construction, LLC
[email redacted]
Kathleen Maison
[email redacted]
Brian Gentner
[email redacted]
Masterpiece Construction Services LLC
[email redacted]
By: OAH Staff