ALJDEC - Licensing
2023A-08147-CHC-ROC · Registrar of Contractors · 2023-11-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Vanessa Avelar,
COMPLAINANT,
v.
Hunter Investment Group LLC
DBA: Hunters Home Builders,
License No. ROC 331870,
RESPONDENT.
No. 2023A-08147-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 7, 2023.
APPEARANCES: Vanessa Avelar represented herself. Darryl Hunter represented Hunter Investment Group LLC dba Hunters Home Builders.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
___________________________________________________________________
FINDINGS OF FACT
Respondent is the holder of License No. 331780, KB-2 Dual Residential and Small Commercial, issued by the Arizona Registrar of Contractors (Registrar, or ROC) on January 7, 2021.
On July 18, 2023, Complainant filed a Licensed Complaint Form (Complaint) with the Registrar indicating that, as to Respondent’s construction work, Respondent had not installed weather proofing barrier and had not sealed the windows and, as to their contract, Respondent refused to provide a paid-in-full statement.
On July 6, 2023, Complainant contacted with Respondent to frame and install three windows into walls that previously did not have windows. The work began on July 12, 2023. After the windows were in the walls but the project not yet completed, Complainant questioned whether Respondent had installed a weather proofing barrier and how Respondent was going to seal the windows. Respondent indicated caulk would be used to seal the windows. In response to her July 14, 2023 text about her concerns, Respondent’s worker replied that weather proofing was not needed because it was not a new build, and Respondent replied they would explain the work to her when they came to finish the project.
On July 16, 2023, Respondent indicated to Complainant that Respondent would put “material” in for weatherproofing. After completing the window installation work, Respondent then stuccoed around the windows. After they finished working and left for the day, Complainant began to clean stucco excess/dust off the window frames and a chunk of stucco fell off. As she looked over/into the space area between the window and the wood framing, Complainant did not see any moisture barrier or any sealant.
When she contacted Respondent about the poor “craftsmanship,” they first indicated the worker would come out and when Complainant protested due to the poor work the worker had performed already, Respondent indicated there would be a trip charge of $80.00. Complainant refused to be charged a trip fee and refused to have Respondent’s worker come out to fix the project.
After receiving the Complaint, Registrar’s Investigator Aaron King set and conducted a jobsite inspection on August 9, 2023, took photographs, and, thereafter, issued a Written Directive (Directive) on August 10, 2023 verifying that the installation work had been verified as needing corrective work.
The Directive noted the following work needed to be corrected:
Complaint Item: CONSTRUCTION CODE VIOLATION/POOR CRAFTSMANSHIP. Contractor did not seal windows or install weatherproofing barrier.
Investigator’s Observation: There are three windows that were shown. One of the windows had openings in the stucco that allowed visual access to the window surround. The gaps did show that the new window in place is not flashed. There is no indication that there is weather stripping or flashing in place. When weather strips are missing or damaged on windows, this will not meet minimum workmanship standards. The Respondent will need to identify the windows missing this and correct by 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.
The Registrar set forth August 28, 2023 as the deadline for Respondent’s compliance with the Directive.
Respondent did not appear for the jobsite inspection.
On August 28, 2023, Investigator King conducted a compliance inspection. Complainant had made several cuts into the walls next to the windows to allow a better view and inspection. Investigator King inspected the work, took photographs, and determined that the Directive item had not been corrected:
Compliance Findings: The Complainant had done some destructive opening to provide visual access to the areas around the windows. There was no evidence of any type of weather protective barrier between the window and the wood framing or the vapor barrier placed behind the stucco walls. There was no flashing, or weather stripping.
Respondent did not appear for the compliance inspection.
Investigator subsequently forwarded the Complaint to ROC legal department for legal citation against Respondent.
The Registrar issued a Citation on September 8, 2023, charging Respondent’s license with possible violations of: ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this 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.”
On September 12, 2023, Respondent filed an “Answer” to the Citation. The “Answer” is a copy of a countersuit filing (dated August 18, 2023) Respondent had made in Maricopa County Justice Court. In those documents, Respondent explained the following:
The weather proofing barrier is in the existing walls of a home, and only goes out to 1⁄4 inch of the frame edge of each window. Ms. Avelar doesn't understand that the wood is inside the wall, behind the weather proofing. I tried to explain to Ms. Avelar, more than once, that the weather proofing is in the existing wall behind the wood, and we are just sealing around the window with caulk. Her current exterior wall was so uneven that we had to build up several areas, to bring the existing walls level with the edges of the installed window frames.
At hearing, Investigator King testified that the windows had needed to be installed according to the manufacturer’s installation instructions.
At hearing, Complainant argued that, due to the manner in which Respondent had installed the windows, her warranty was now void.
At hearing, Respondent disagreed with the Investigator’s inspection result and argued that there was a difference in how to install windows into new construction versus into existing construction. Respondent argued that no one can see the sealant or flashing that is already there because when Complainant made the destructive holes all you can see is a void. Respondent argued that the Complainant’s windows had been sealed “the same way it was already sealed with subfloor but no mesh because it’s already flashed inside.” Respondent further stated that the inside wall “already has felt” and all that was needed to make this installation was to seal the windows inside and outside. Respondent indicated that they had completed the installation by filing the gaps [between the windows and existing exterior walls] with stucco mixed with cement glue to fill the gaps.
Since the hearing session, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this recommended decision.
Administrative notice is taken today of Respondent’s license record with the Registrar, which reflects that this is the only open complaint and that one complaint was closed out in October 2022.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Following the issuance of the Directive mandating correction of the window installations regarding workmanship, Investigator King found those workmanship contracting violation issues still existed at the time of the compliance inspection. At hearing, Investigator King indicated that those same workmanship issues remained uncorrected.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner.
11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar suspend Respondent’s ROC License 331870 for four days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to Ariz. Rev. Stat. § 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, November 27, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Hunter Investment Group LLC
Dba Hunters Home Builders
[email redacted]
Vanessa Avelar
[email redacted]
Aaron King
ROC Investigator
[email redacted]
By: OAH Staff
.