ALJDEC - Licensing

2024A-03233-CHC-ROC · Registrar of Contractors · 2024-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patrick John Healey ,

COMPLAINANT

v.

Arizona Construction & Restoration

Corporation

DBA: Restoration Corporation,

License No’s. ROC 265055, 265054

RESPONDENT

No. 2024A-03233-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 2, 2024

APPEARANCES: Patrick Healey appeared on his own behalf. Zach Brizzee appeared on behalf of Arizona Construction & Restoration Corporation.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Respondent’s exhibits A through E were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Arizona Construction & Restoration Corporation (Respondent) is the holder of License No. 265055 and 265054 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 6, 2023, Patrick Healey (Complainant) entered into a contract with Respondent for the repair of a window leak and to resand and reseal a concrete countertop.

On or about March 18, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. After a jobsite inspection, Investigator Fagerburg issued a written directive 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 Wednesday may 22, 2024.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: Concrete kitchen countertop to be sanded and sealed.

Inexperienced sub ruined concrete.

Investigator’s Observation: At this jobsite investigation the respondent acknowledged that this was the first time the respondent’s subcontractor who performed the work had ever sanded and resealed a concrete countertop. During this jobsite investigation at the concrete kitchen countertop the complainant showed me where there are grooves, scratches and air bubbles in the finished surface. See P (3) thru P (6). The complainant also showed me where the stained finish has been worn down

with exposed aggregate in the concrete finish. See P (8) thru P (10). After this jobsite investigation the respondent provided photos prior to the work commencing showing that some of the color in the concrete countertop was previously worn due to normal wear near and around the kitchen sink, above the dishwasher and other small areas throughout the countertop surface. The photos also showed a crack in the countertop at the kitchen sink. After this jobsite investigation the complainant provided copies of text from the respondent acknowledging the work was not up to standard and is taking the necessary steps to resolve the matter. During this jobsite investigation both parties acknowledged that another contractor made an attempt to correct the work at the small countertop on the right side of the stove. The color and sheen of the finish appeared to be an improvement compared to the remainder of the countertop and close to the original finish prior to the work commencing. However, the aggregate has been exposed. The respondent shall correct the concrete kitchen countertop finish with grooves, scratches, air bubbles and exposed aggregate by appropriate means.

. . . . .

Compliant Item 3: Stucco repair terrible craftsmanship.

Investigator’s Observation: At this jobsite investigation I observed stucco repairs around 2 north facing windows of the home. The stucco repairs are obvious and are not uniform with the surrounding stucco finish at both locations standing at a normal position. See P (11) thru P (16). During this jobsite investigation the complainant showed me another window on the south side of the home that was previously repaired by another contractor as an example of what the complainant would be satisfied with. See P (20). The respondent acknowledged that the stucco was removed to replace all 4 sides of the wooden window frames at both locations with new milled wooden components. The respondent shall correct the stucco repairs that are obvious and not uniform with the surrounding stucco finish at 2 exterior windows by appropriate means.

Following the issuance of the written directive, Complainant and Respondent exchanged a series of emails. However, after the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Fagerburg testified consistently with his written directive and jobsite inspection notes and observations. He further testified that he did not complete a compliance jobsite inspection because he had been informed that no corrective work had been performed. Investigator Fagerburg further stated Respondent did not request an extension on the written directive deadline or provide any information to give him good cause for an extension to the deadline. He testified that while he was carbon copied on a string of emails between the parties, none of the emails were ever addressed to him prior to the deadline. He further stated that there had never been any set schedule to complete the work in the email string. Investigator Fagerburg stated that the handout he provided at the jobsite inspection clearly stated that either party may ask for an extension of the deadline, but neither party requested one. He simply interpreted the string of emails as communication between the parties, not a request for an extension.

Complainant testified that after Respondent had damaged his countertops, he consulted with additional contractors, all of whom advised him he needed new countertops and that it could not just be re-sanded. Complainant testified that on May 15, 2024, Jed Vowers from V Stained Concrete was sent to his home at the request of Respondent. However, Mr. Vowers had already been to Complainant’s home previously on December 5, 2023 and advised him that he would need to have the countertops replaced and that Mr. Vowers would not recommend utilizing slurry as suggested.

Complainant further testified that on Friday, May 10, 2024, contractors appeared at his home at 3:49 p.m. Upon their arrival, they advised Complainant that they did not have the right sand for the project. Complainant testified that he advised the contractors that he would be available if they wanted to return over the weekend. Complainant testified he never heard from them again. Complainant stated that he wanted the countertops to be placed back in their original condition before they were damaged.

Mr. Vowers testified on behalf of Respondent. Mr. Vowers testified that a slurry patch was a normal product used to repair concrete and that, if done correctly, it would adhere to other concrete and could be sanded to a smooth finish. Mr. Vowers additionally testified that he did not recall advising Complainant not to use slurry to correct the issue.

Zach Brizzee, president and CEO for Respondent, testified on Respondent’s behalf. Mr. Brizzee testified that he admitted his contractors were inexperienced and performed substandard work. He further stated that Respondent was in communication with Complainant the entire time after the jobsite inspection, but admitted to not having set a work schedule due to contractor availability. Mr. Brizzee testified that he had sent an email to Complainant stating that the correction would go beyond the given written directive deadline. Mr. Brizzee thought that because Investigator Fagerburg was on the same email, Mr. Brizzee was showing Respondent needed more time. Mr. Brizzee stated the intent to request an extension of the deadline was present; however, he admitted he never explicitly requested the actual extension. He also stated that he was not aware that Complainant was going to leave down, and had he known, he may have pushed a little harder to “get it done.”

Administrative notice is taken of Respondent’s prior License record on August 2, 2024. Such prior License record reflects that Respondent’s License No. 265055 and 265054 were first issued on June 19, 2010, and are currently active. Such prior License record also reflects that there were no cases against License No. 265054 and this open complaint and one prior resolved/settled case for insurance complaince against Respondent’s License No. 265055.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

It is undisputed that Respondent’s contractor performed substandard work. Therefore, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The Administrative Law Judge acknowledges Respondent’s communication and attempts to provide solutions to Complainant with regard to the project. Notwithstanding, the burden was upon Respondent to perform corrective work that the Registrar would have considered to be completed in a workmanlike manner.

It was also Respondent’s burden to request an extension of the written directive in the event it could not complete that work within the time frame provided. Although Respondent’s intent may have been there, Respondent admits that it never explicitly requested an extension. Respondent never addressed any of its emails to Investigator Fagerburg. Rather, Investigator Fagerburg was only carbon copied on a series of emails between the parties.

Therefore, the evidence established that Respondent did not complete the corrective work following the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 265055 and 265054 for a period of 1 day.

No civil penalty is recommended pursuant to Ariz. Rev. Stat. § 32-1154(E) at this time.

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 21, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff