ALJDEC - Licensing
2024A-01421-CHC-ROC · Registrar of Contractors · 2024-11-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Alyssa Culbertson
COMPLAINANT,
v.
R P M Masonry and General Contracting Inc.
License No. ROC 168993,
RESPONDENT.
No. 2024A-01421-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 1, 2024
APPEARANCES: Alyssa Culbertson (Complainant) appeared on behalf of herself. Ron Polder appeared on behalf of R P M Masonry and General Contracting, Inc. (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Exhibit A (the hearing packet of the Arizona Registrar of Contractors).
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FINDINGS OF FACT
1. Respondent holds license number 168993 issued by the Arizona Registrar of Contractors (Registrar or ROC).
2. Ron Polder (hereinafter “Mr. Polder”) is Respondent’s qualifying party.
3. On or about January 17, 2022, Respondent agreed to build a new home for Complainant, for the amount of $659,685.00. Complainant paid Respondent $681,359.62 for construction.
4. On or about September 26, 2022, Respondent started work.
5. On or about December 5, 2023, Respondent stopped work.
6. On or about February 13, 2024, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.
7. The Registrar assigned the complaint to one its investigators, Christopher Allison (Investigator Allison).
8. On or about March 29, 2024, Investigator Allison conducted an initial job-site inspection. See Exhibit A, pg. 63. Investigator Allison investigated all 17 items form the complaint. Investigator Allison verified that approximately 11 items constituted poor work or were incomplete.
9. On or about April 24, 2024, the Registrar issued a Directive to Respondent. See Exhibit A, pgs. 57-60. The April 4, 2024 Directive provided, in relevant part, as follows:
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You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Sunday, May 12, 2024.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 4 - Kitchen cabinet install not completed
Investigator’s Observation: Cabinets are missing trim, range is not secured. Complainant has stated that they have the remaining trim needed. Respondent shall complete/correct in an appropriate manner. 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 - paint job poorly done in areas of the home Investigator’s Observation: Respondent shall correct in an appropriate manner.
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: 6 - gaps in logs that expose outside
Investigator’s Observation: Respondent shall correct in an appropriate manner.
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: 7 - holes in ceilings and walls around light fixtures Investigator’s Observation: Respondent shall correct in an appropriate manner.
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: 8 - drywall not completed and already cracking in many spots
Investigator’s Observation: Respondent shall complete/correct in an appropriate manner.
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: 9 - windows not sealed/caulked into wall properly. Big gaps seen
Investigator’s Observation: Respondent shall complete/correct in an appropriate manner.
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: 12 - fascia on base of home never completed Investigator’s Observation: Respondent shall correct in an appropriate manner.
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: 13 - The concrete foundation of the garage leaks Investigator’s Observation: Water should not be entering through the foundation. Respondent shall correct in an appropriate manner.
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: 14 - Tension bolt were covered with spray foam Investigator’s Observation: Addendum item added at inspection. Tension bolts are not accessible due to being covered in spray foam. Respondent shall correct in an appropriate manner.
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: 15 - Stair finishing - loose tread
Investigator’s Observation: Addendum item added at inspection. Some stair treads are loose and/or not installed correctly. The drywall meeting the stair tread on the outside wall is done poorly. Respondent shall correct in an appropriate manner.
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: 16 - HVAC return damaged.
Investigator’s Observation: The complainant provided documentation showing a piece of flooring sitting in the return duct during construction. Respondent shall correct in an appropriate manner.
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.
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10. The deadline to comply with the Directive was extended to June 7, 2024 at the request of Respondent.
11. On June 11, 2024, Investigator Allison conducted a compliance job-site inspection. See Exhibit A, pgs. 121 to 127. Investigator Allison’s compliance job-site inspection notes provided, in relevant part, as follows:
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Compliance Findings:
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Compliance Item: 5 - paint job poorly done in areas of the home
Investigator’s Observation: Not all the paint overspray was removed off the wood components of the home. There is also area where drywall dust was not cleaned as part of correction. This item is not in compliance with the written directive.
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: 6 - gaps in logs that expose outside
Investigator’s Observation: Respondent stated at the inspection that “the gaps in the logs are through the entire house. I don’t have time to show you every single gap, that’s somebody else’s job. So, Billy has now foamed that because we have hornets coming into our house.”
Gaps between logs is common in a log home. During the inspection I did not notice and gaps that were that exposed the outside. Corrected and in compliance with the written directive.
Governing Rule: Corrected and in compliance with the written directive.
Compliance Item: 7 - holes in ceilings and walls around light fixtures
Investigator’s Observation: Only area not corrected is exposed drywall screws in the garage. This item is not in compliance with the written directive.
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: 8 - drywall not completed and already cracking in many spots
Investigator’s Observation: The drywall was completed. Some of the corrected areas were not sanded smooth prior to painting. Some areas around logs were done poorly. The wall bump out at the back door is not within workmanship tolerances. This is causing the reveal against the door trim to taper. This item is not in compliance with the written directive.
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: 9 - windows not sealed/caulked into wall properly. Big gaps seen Investigator’s Observation: not all windows were caulked correctly. The reveal on the frames of some windows were not equal. This item is not in compliance with the written directive.
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.
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Compliance Item: 12 - fascia on base of home never completed
Investigator’s Observation: The Fascia was installed. However, the fitment and staining was poor. This work was not done in a professional manner and is not in compliance with the written directive.
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: 15 - Stair finishing - loose tread
Investigator’s Observation: The stairs were corrected. However, some of the caulking is sloppy and caulk is smudged on the walls. This item in not in compliance with the written directive. 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.
Emphasis Added.
12. On or about June 21, 2024, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Ariz. Rev. Stat. §§ 32-1154(A)(3) and (22); namely Arizona Administrative Code (A.A.C.) R4-9-108(A).
13. Respondent filed a timely answer to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. A hearing was held on November 1, 2024.
16. At hearing, Complainant testified on behalf of herself and presented the testimony of her husband, William Culbertson. Investigator Allison testified regarding his investigation of the complaint and the issuance of the Directive. Respondent presented the testimony of Mr. Polder, Luis J. Sahagun (George), Lance McKay, Shawn Yazze, and David Merrick.
17. Investigator Allison testified consistently with his job-site and compliance job-site inspection notes. However, Investigator Allison stated that under Compliance Item 6 in his compliance job-site inspection notes, he intended to write “Complainant” instead of “Respondent.” Regarding Complaint Item 8, Investigator Allison clarified at hearing that the issue was a reveal between the door frame and the trim that does not comply with industry standards. See Exhibit A, pg. 98.
18. Complainant stated that the seams of the drywall were uneven. Complainant also stated that there was a light fixture that had gaps around it. Complainant disagreed with Investigator Allison regarding his conclusion that Respondent corrected Compliance Item 6. Complainant stated that there are still gaps in the logs that expose sunlight. Regarding Compliance Item 15, Complainant stated that she and her children walked on the stairs where Respondent made repairs, because she would not remove her children from their bedrooms. Complainant stated that she and her children walked very carefully in the middle of the stairs so that they did not touch the bull nose that was re-glued. Mr. Poder explained at hearing that he recommended that Complainant’s children sleep downstairs. Complainant expressed that she did not believe the poor work in the repair performed to correct Compliance Item 15 was caused by the fact that she and her children walked on the stairs.
19. Complainant explained that she only allowed Respondent to work between the hours of 8:00 a.m. and 1:00 p.m. so that she would not interrupt her child’s nap time. Complainant also stated that during the time frame for the Directive, Respondent was provided with 50 hours to perform work and used only 20 hours. Complainant also stated that Respondent was provided with an additional three weeks to complete the Directive which totaled 75 hours. However, Respondent only used 4 hours.
20. Mr. Poder explained that he has worked as a contractor in Flagstaff for 25 years. Mr. Poder stated, with regard to Compliance Item #7, that there were not screw holes in the wall. Mr. Poder alleged that the screw holds were all sealed. Regarding Compliance Item #8, Mr. Poder stated that there were no dings in the walls or window seals. Mr. Poder stated that any existing dings must have occurred after the homeowner moved in. Regarding Compliance Item #12, Mr. Poder contended that the work was done in compliance with workmanship standards, but it could look better. Mr. Poder stated that although the piece was stained, there were still visible spots. Regarding Compliance Item 15, the smudges on the walls were caused by Complainant’s children walking on the tread before the repair was completed.
21. Mr. Poder explained that Complainant would only allow Respondent to work between the hours of 8:00 a.m. until 1:00 p.m. Mr. Poder contended that Complainant did not allow Respondent enough time in a day to sand, correct, and paint drywall, nor to paint and apply overspray.
22. Lance McKay performed corrective work for Respondent during the timeframe for compliance under the Directive. Mr. McKay stated that he caulked everything correctly, but it was difficult to properly clean the logs due to the time constraints. Mr. McKay stated that he did not see an open screws holes. Mr. McKay admitted on cross examination that Complainant allowed him to stay past 1 p.m. on one day.
23. George performed corrective work for Respondent during the timeframe for compliance under the Directive. George stated that he never saw any exposed screw holes and that he would have corrected any that he observed. George explained that Complainant did not allow him to stay for a long enough time during the day to clean the drywall. George explained that he worked hard to correct the work.
24. Shawn Yazzie performed corrective work for Respondent during the timeframe for compliance under the Directive. Mr. Yazzie stated that he did not create any holes nor did he cause any dents to the walls. Mr. Yazzie confirmed on cross examination that he observed gaps around the light fixture.
25. Derrick Merrick explained that he was present for most of the project and that he never saw any open screw holes.
26. Upon consideration of the evidence presented at hearing, the Administrative Law Judge finds that Respondent had sufficient time to make the necessary corrections under the Directive. Although Complainant only allowed Respondent to work between the hours of 8:00 a.m. and 1:00 p.m., Respondent used only half of the time allotted to him under the original Directive to make repairs. Although Respondent was given an additional 75 hours to make repair, Respondent only used 4 hours. There was no evidence presented at hearing that Respondent explained to Complainant that the completion of any repair depended upon Complainant allowing Respondent to work an additional one, two, three, or four hours in a given day.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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).
3. The Administrative Law Judge may consider Registrar’s administrative
record. See Ariz. Admin. Code. § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
5. The preponderance of the evidence shows that Respondent appropriately corrected Compliance Items 4, 6, 13 14, and 16 that were listed in the Directive.
6. There is insufficient evidence to establish that Respondent failed to appropriately correct Compliance Item 12, because the evidence shows that Complainant and her children modified Respondent’s repair by walking on the stairs before the repair was complete.
7. The preponderance of the evidence shows that Respondent failed to correct Compliance Items 5, 7, 8, 9, and 15, without valid justification, which is a violation of Ariz. Rev. Stat. section 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 number 168993 for three 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. section 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. sections 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, November 21, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Alyssa Culbertson
[email redacted]
R P M Masonry and General Contracting Inc.
[email redacted]
By: OAH Staff