ALJDEC - Licensing

2023A-12921-CHC-ROC · Registrar of Contractors · 2024-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Shumway,

COMPLAINANT,

v.

All Aspects Construction and Remodeling

LLC,

License No. ROC 327411,

RESPONDENT.

No. 2023A-12921-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2024

APPEARANCES: James Shumway represented himself. Matthew R. Camp, Manager, represented All Aspects Construction and Remodeling LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet); Complainant’s Exhibits 1 through 21; Respondent’s Exhibits A through D.

_____________________________________________________________________

FINDINGS OF FACT

All Aspects Construction and Remodeling LLC (Respondent) is the holder of License No. 327411, KB-1 Dual Building Contractor, issued by the Arizona Registrar of Contractors (Registrar or ROC) on January 16, 2020.

On or about November 8, 2023, James Shumway (Complainant) filed a Licensed Complaint Form (Complaint) with the Registrar indicating his complaints regarding Respondent’s construction work. Complainant indicated the work began June 23, 2023 and ended on September 18, 2023 for a total contract price of $7,593.72. Complainant noted specific issues with five doors.

The parties did not have a written contract, instead using a detailed invoice for installation of the four doors and work on the fifth door. These subject doors and the installation thereof were the second set of [four] doors installed by Respondent, i.e., “replacement” doors as noted on the invoice.

After receiving the Complaint, Registrar’s Investigator Mike Springer scheduled, and rescheduled, a jobsite inspection that was then conducted on January 26, 2024.

Following the jobsite inspection, Investigator Springer issued a Written Directive (Directive) on January 30, 2024 verifying that some corrective work was needed.

The Directive noted the following work needed to be corrected:

Compliance Item: 1 - Master Bedroom Exterior replacement door - sags, binds, has weatherstripping gaps, was not painted on all 6 sides, and does not have a bottom drip cap Investigator’s Observation: Door is difficult to open, binds at jamb. light can be seen at bottom. Door is not painted on top and bottom. drip edge is not common on a door protected by a patio.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Garage Exterior replacement door - sags, deadbolt doesn't lock, has weatherstripping gaps, was not painted on all 6 sides, and does not have a bottom drip cap.

Investigator’s Observation: Door is not square in opening. Deadbolt does not function. Gaps in weatherstripping at bottom. Not painted on all sides. Complainant states that door leaks water when raining. Door is a Southern exposure with no cover and should have a drip edge at the bottom.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - HVAC replacement door - deadbolt doesn't lock, door handle doesn't latch, hinges are bent and binding, has gaps around strike plates, has weatherstripping gaps, jamb was not completely painted, door was not painted on all 6 sides, does not have a bottom drip cap, and door bottom cap is missing

Investigator’s Observation: Door does not latch and needs a board to hold it shut. Light can be seen all around the door from inside. Hinges have been altered and appear bent. Door is not painted on all sides. Unpainted wood at jambs. Missing bottom weatherstripping. Door is an outswing and should not require a drip edge.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Front repaired door - was not painted,

weatherstripping was not replaced, strike plate was not replaced.

Investigator’s Observation: Striker was replaced by Complainant. Door is not painted on all sides. Door is split at hinge.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Garage Entry replacement door - deadbolt doesn't lock, door has sharp edges, Fire Door Self Closing Hinges don't work door won't open all the way with thin door mat in place, has weatherstripping gaps, not painted on all 6 sides

Investigator’s Observation: Deadbolt does not function, door does not self close, edges of door are sharp, not painted on top or bottom. Weatherstripping is cut short. Texturing on wall done poorly.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

The Registrar set forth February 20, 2024 as the deadline for Respondent’s compliance with the Directive.

Respondent performed corrective work on February 12, 2024. At that time, Respondent took videos of its finished work.

On April 18, 2024, Investigator Springer conducted a compliance inspection. Investigator Springer again inspected the work, took photographs again, and determined as follows:

As to Item 1: Door still has light showing at the bottom.

As to Item 2: Light is still visible at the bottom of the door.

As to Item 3: Light is visible around the edges of the door. Door is unpainted around the hinges. Bottom of door has open cavities which can allow moisture or pests to get inside the door. Deadbolt does not lock.

As to Item 4: A very small amount of light can be seen at the bottom.

Investigator Springer subsequently forwarded the Complaint to ROC legal department for legal citation against Respondent.

The Registrar issued a Citation on April 19, 2024 charging Respondent’s license with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; 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)(12) involves a failure to comply with the statutes, specifically here in regard to the contract requirements set forth in Ariz. Rev. Stat. § 32-1158.

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 May 3, 2024, Respondent filed its answer (Answer) to the Citation. Respondent noted that, apparently based on its re-installation work in September 2023, it believed that someone was “tampering” with its work. Respondent noted that it found hinges that apparently had been “bent and sprung” when it did the corrective work and that was why it took videos of its final corrective work on February 12, 2024. Respondent indicated that the weather stripping on the doors had been shorted at the factory and that it had replaced all weather stripping that was too short.

The matter was not resolved informally by the parties and proceeded to administrative hearing.

At hearing, Investigator Springer testified regarding the Complaint, his inspection, and the workmanship deficiencies he had observed at the jobsite inspection and at the compliance inspection. Overall, Investigator Springer testified that doors should be tightly sealed and that you should not be able to see any light around the doors.

Investigator Springer did not address whether Respondent had corrected the “written contract” issues.

At hearing, Complainant raised a water leak issue that was not raised with Investigator Springer at the hearing. There are no references in the Complaint or the Directive with regard to any water leaks; therefore, it must be presumed that this is a new issue which has not been investigated by the ROC. Regarding the alleged water issue, Respondent stated that it was a function of the threshold and drainage.

Respondent argued that they had fixed all the Directive issues and that, in their submitted videos (taken on February 12, 2024), one could see that the issues are “fixed.” Respondent argued that the hinges had been “sprung” which had caused the gaps seen at the jobsite inspection, but now were replaced. Respondent continued to state that its work was “not the same” when it came back to do corrective work, again inferring that its work was tampered with.

Complainant argued that Respondent’s videos, such as one showing “locking” the lock, simply do not show the entire door issues, stating that the videos did not show the weather stripping gaps. Complainant argued that his videos show some of the remaining issues. Complainant argued that Respondent had not voiced any concerns about tampering with Investigator Springer at the compliance inspection.

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 the instant matter is the only open complaint.

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 door installations regarding workmanship, Investigator Springer found that several workmanship violation issues still existed at the time of the compliance inspection.

10. The water leak issue cannot be addressed herein, as there is no evidence it was either a Complaint issue or a Directive issue. Further, neither party raised the issue with Investigator Springer at the hearing and, thus, he did not give either any testimony or opinion in that regard.

11. Based on the hearing record, it cannot be determined whether Respondent has demonstrated to the ROC the corrections needed regarding Respondent’s written contract practices.

12. Based on the hearing record, 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.

13. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive in several respects. 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 327411 for one business day.

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 may institute a revocation on 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, September 1, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically September 3, 2024 to:

Tom Cole, Director

Registrar of Contractors

Legal Department

Mike Springer

[email redacted]

James Shumway

[email redacted]

All Aspects Construction and Remodeling LLC

[email redacted]

By: OAH Staff