ALJDEC decisions subject to certification as final

07F-0249-ROC · Registrar of Contractors · 2007-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 28, 2006. APPEARANCES: Gary Furash and Melissa Furash appeared personally. As You Like It Design, Inc., doing business as Handyman Network, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. As You Like It Design, Inc., doing business as Handyman Network (“Respondent”), is the holder of License No. 178532, a Class B- contracting license issued by the Registrar of Contractors. 2. In April 2006, Gary and Melissa Furash (“Complainants”) hired Respondent for a remodeling project at their residence in Phoenix, Arizona. The remodeling project was supposed to be completed in May 2006. 3. In July 2006, while Respondent was still performing work on the project, Complainants discovered that Respondent’s contracting license had been revoked in June 2006 by the Registrar of Contractors. Complainants became concerned with Respondent being legally able to perform work on their project with a revoked license. 4. In August 2006, Complainants filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 5. The Registrar of Contractors issued Respondent a cease and desist order for Complainants’ project due to the revocation of its contracting license. 6. In response to Complainants’ filed complaint, the Registrar of Contractors issued a Citation and Complaint against Respondent in Case No. 07-0249 and referred the matter to the Office of Administrative Hearings, an independent agency, for formal hearing. 7. The commencement of the scheduled hearing was delayed for approximately 15 minutes to allow for the late arrival of an authorized representative or attorney for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. During the performance of its scope of work, Respondent adjusted Complainants’ front door. However, there is a gap under the door that now admits water to the interior of the house. 9. Respondent failed to finish the removal of a wall. Respondent also moved electrical service to a location that cannot be covered by a plate. 10. Respondent failed to finish the skip trowel and painting of a 10’ X 14’ ceiling. The ceiling still had areas needing texture. 11. Respondent failed to properly remove an existing Jacuzzi pad and pour a new pad. Complainant Melissa Furash testified that the new pad is not level and lacks freeze joints. 12. Respondent was to have cut back a refrigerator wall approximately 20” top to bottom, remove a stud, apply a corner bead, and rock, mud and texture. Respondent failed to finish the cut back and did not perform the drywall, mud and texture. 13. Respondent failed to complete a pantry addition and cut back hall closet doors and header. The doors now have exposed screws, are uneven and the bottom track was not replaced. 14. Respondent failed to complete the proper hanging of corner shelves in the new pantry. 15. Respondent installed a pull chain light backwards. 16. Respondent was responsible for the installation of 1,200 square feet of tile and tile baseboard. The grout installed by Respondent is discolored with grout left on some tiles. The tile baseboard is uneven, including one area not grouted. 17. Respondent was responsible for replacing the tub and surround, faucet and shower head in the master bathroom. Respondent installed the shower valve backwards. There is spray texture on the tile. The tub and fixtures were not caulked and the stone not fully sealed. 18. In the kitchen, Respondent removed and resized cabinets, resulting in the cabinet doors no longer fitting. Further, the electrical outlet boxes are not finished. 19. Respondent’s scope of work included painting the entire interior of Complainants’ residence. Respondent failed to paint two rooms. The paint applied in the master bedroom was damaged by stain. 20. Respondent’s installation of countertops with copper laminates in the kitchen and master bathroom was poorly done. The countertops were not sealed properly and they keep staining. 21. Respondent failed to complete the installation of flagstone/border brick coatings on the circular concrete pad. 22. Respondent failed to complete the installation of border tile backsplashes in the kitchen. The border tile backsplashes were not properly grouted, sealed or caulked. 23. Respondent failed to complete the refinishing of cabinets. One drawer unit in the kitchen was drilled through by Respondent and rebuilt improperly. Respondent failed to apply finish to the cabinets per specifications. Respondent did not apply urethane as required. Respondent also lost some shelves. 24. Respondent damaged a chandelier. Complainants have been unable to replace the damaged glass shades due to those parts being unavailable. The fixture must be replaced. 25. Respondent is found to be responsible for a broken window that needs to be replaced. 26. Complainants’ back gate was damaged by Respondent forcing a concrete mixer through the gate. The gate does not securely close now. 27. Complainants allege that Respondent is responsible for the tracks and wheels in the sliders in the living room and master bedroom being destroyed by tile debris. However, it is determined that insufficient evidence exists to attribute such damage to Respondent’s workmanship. 28. It is determined that insufficient evidence exists to support a finding that Respondent’s workers were responsible for two GPS units being stolen from Complainants’ garage while Respondent was performing work on the project. 29. Complainants provided Respondent with Home Depot gift cards for purchasing supplies for the project. Respondent was required to submit receipts to Complainants for items purchased with the gift cards. Respondent submitted receipts dated prior to the commencement of Complainants’ project. Other receipts reflected purchases of items not used by Respondent on Complainants’ project. There is credible evidence that Respondent agreed to reimburse Complainants $900.00 for items purchased with the gift cards that were not used on the project. Respondent has reimbursed Complainants. 30. Respondent purchased approximately twice the amount of copper used on the project and kept the unused copper. There is credible evidence that Respondent agreed to reimburse Complainants $420.00 for the excess copper. 31. On December 19, 2006, the Registrar of Contractors’ assigned agency inspector, Warren Duncan, performed a prehearing jobsite inspection to view the alleged deficiencies. 32. At the hearing, Inspector Duncan testified that there were numerous workmanship violations with Respondent’s workmanship. Among other items, Inspector Duncan noted that the bathroom vanity bowel was not fastened down and the toilet paper holder was not level. 33. A review of the official records of the Registrar of Contractors reveals that Respondent’s Class B- contracting license was revoked on June 7, 2006 in Case No. G06-0162. Respondent’s contracting license was revoked a second time on July 17, 2006 in Case No. G06-0162. The license was revoked a third time on January 3, 2007 in Case No. T07- 0026. 34. Respondent is found to have abandoned Complainants’ project by failing to complete it due to the revocation of its contracting license. The revocation of Respondent’s contracting license due to its statutory and/or regulatory violations in another case is not legal justification for its abandonment of Complainants’ project. 35. Respondent’s abandonment of Complainants’ project, its improper use of the Home Depot gift cards as described above, its ordering and retaining excess copper as described above and its substandard workmanship are wrongful acts that have substantially injured Complainants. Complainants will be required to hire another properly licensed contractor to correct Respondent’s deficient workmanship and to complete the full scope of the project.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. A.R.S. § 32-1154(C) provides that the revocation of Respondent’s Class B- contracting license does not deprive the Registrar of Contractors with jurisdiction to proceed against Respondent’s license in this matter, including the imposition of additional disciplinary action for proven violations by Respondent. 2. A.A.C. R2-19-119(B) provides that Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(1), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108 as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. As a result of the three prior revocations of Respondent’s Class B- contracting license, it is concluded that Respondent’s License No. 178532 should be revoked in Case No. 07-0249, pursuant to A.R.S. § 32- 1154(B) and (C).

RECOMMENDED ORDER

Respondent’s License No. 178532 shall be revoked on the effective date of the entered Order in Case No. 07-0249. 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 40 days from the date of that certification.

Done this day, January 17, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826