ALJDEC decisions subject to certification as final

08F-2032-ROC · Registrar of Contractors · 2009-03-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2009 APPEARANCES: Complainant: Ngoc-Nu Thi Nguyen, owner, appeared, pro per. Respondent: Respondent failed to appear either personally or through any authorized representative or agent. Registrar of Contractors: Inspector Beau Cruz appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated February 6, 2009. 2. Complainant Ngoc-Nu Thi Nguyen (“Complainant”) is an individual doing business as #1 Nails. 3. Respondent Tom Vinh (“Respondent”) is an individual doing business as Custom Tech Design and C T Signs. Mr. Vinh holds Arizona Contractor’s License No. 180107, Class KB-01 (Dual Building) issued by the Registrar of Contractors (“ROC/Registrar”) November 13, 2002. A review of the licensing database maintained by the ROC indicates that this license was suspended from December 1 – 10, 2004 for lack of bond and revoked May 15, 2008 (T06-0912). 4. Complainant filed a complaint with the ROC on January 25, 2008 wherein she alleged various workmanship problems with Respondent’s completion of the “complete construction of [a] nail salon” including, without limitation, installation of used carpet, a blurry neon sign, six improperly installed salon chairs and a broken water heater. The referenced nail salon is located at 1700 East Elliot, #3, Tempe, Arizona (“premises/ project”). 5. Registrar of Contractors Inspector Beau Cruz (“Cruz”) conducted a jobsite inspection on January 25, 2008 and issued a Corrective Work Order on March 10, 2008 (“CWO”) which required Respondent to perform corrective work on items 6 (main water heater is used, rusted and paint is faded) and (trip hazard exists where carpet and tile meet).[1] 6. On August 14, 2008, the Registrar issued a Citation and Complaint in Case No. 08-2032 charging Respondent with possible violations of A.R.S. §32-1154(A) (2), (7), (9), (3) (namely, A.A.C. R4-9-108, the workmanship rule) and (13) (specifically, A.R.S. §32-1124(B)). 7. Respondent filed an answer on August 28, 2008 wherein he alleged, inter alia, that he had corrected all CWO items “prior to specific dated March 25, 2008” [sic]. 8. The Registrar issued a Notice of Compliance on September 4, 2008. 9. On September 16, 2008, Complainant filed with the ROC an objection to Respondent’s notice of compliance wherein she asserted that all nine (9) CWO items need to be repaired and requested reimbursement for the cost she incurred to relocate the six (6) spa chairs. 10. At the hearing, Complainant credibly testified and submitted Exhibits 1 through 7 which were marked, admitted and considered. 11. Respondent failed to appear either through any authorized representative or counsel. 12. Inspector Cruz testified on behalf of the Registrar and described his observations and conclusions on his initial jobsite inspection and March 6, 2009 pre-hearing jobsite inspection. 13. On or about April 29, 2007, the parties entered into an agreement evidenced by Respondent’s invoice no. 0892 (“agreement”) whereby Respondent was to perform certain work in preparation for the construction of the project for a total of $3,000.00. (Exhibit 6) At that time, Complainant paid Respondent a deposit of $2,000.00 toward the cost of agreement 1. 14. On or about May 4, 2007, the parties entered into a second part of the agreement evidenced by Respondent’s second invoice no. 0892 (“agreement 2”) whereby Respondent was to construct the project for a total sum of $31,700.00. (Exhibit 6) 15. On or about May 14, 2007, Complainant paid Respondent $9,500.00 toward the agreement 2 contract sum. Complainant subsequently paid Respondent additional payments of $12,500.00 and $6,000.00 toward agreement 2.[2] 16. On or about July 6, 2007, the parties entered into a third part of the agreement evidenced by Respondent’s invoice no. 0892B (“agreement 3”) whereby Respondent was to perform additional construction services and provide materials to the project for a total sum of $5,619.00. (Exhibit 7) 17. On or about July 16, 2007, Complainant paid Respondent $5,619.00 toward agreement 3. 18. Based on the evidence elicited at the hearing, the following salient facts were also established and are important to note: a. CWO Item 1 (installed used carpet) conforms with minimum workmanship standards. b. CWO Item 2 (neon sign is blurry). Inspector Cruz originally determined that no corrective action was required due to the fact that his inspections took place during the day. However, based on additional evidence presented (Exhibit 1), Inspector Cruz opined that the neon sign does not comport with minimum workmanship standards. c. CWO Items 3 and 4 (Six spa chairs installed unprofessionally/water pipes installed too close to walls). Inspector Cruz did not originally required any corrective action by Respondent due to the fact that another contractor had relocated the subject chairs. However, considering additional evidence presented including Exhibits 2 and 3, Complainant’s testimony as well as Inspector Cruz’s review of the plans presented at the jobsite inspection, Respondent’s installation of the subject chairs 64” from the ledge wall instead of the requisite 72” did not comport with the referenced plans or minimum workmanship standards. d. Complainant paid a third party contractor, Gilbert Ruiz of C.S. McGrossman, Inc., $650.00 to properly relocate the chairs which now function properly. e. CWO Item 5 (small water heated/thermal expansion tank) was corrected prior to initial jobsite inspection and, therefore, no action was required of Respondent. f. CWO Item 6 (main water heater). Inspector Cruz required Respondent to perform corrective work on this item as he opined that it was excessively dented and appeared to be a used water heater where a new one was required. g. CWO 7 (no padding under carpet). No evidence was presented to prove that padding was required. Inspector Cruz testified that the type of carpeting installed does not require padding and is designed to be installed directly onto the subfloor. h. CWO 8 (trip hazard at junction of carpet and tile). Evidence presented confirmed the existence of this trip hazard. i. CWO 9 (wall separating main salon from future waxing room not finished to ceiling per plans). Inspector Cruz testified that the subject wall was constructed per plans presented and reviewed. 19. Respondent’s invoices presented to Complainant did not denote Respondent’s contractor’s license number or the requisite “ROC” acronym. …

APPLICABLE LAW The Citation and Complaint issued by the Registrar of Contractors in Case No. 08-2032 charged Respondent with possible violations of A.R.S. §32- 1154(A) (2), (7), (9), (23), (3) (namely R4-9-108) and (13) (specifically, A.R.S. §32-1124(B)) . Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

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9. Failure in any material respect by the licensee to complete a construction project operation for the price stated in the contract, or in any modification of the contract.

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23. Failure 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 written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar. … 13. Failure in any material respect to comply with the provisions of this chapter.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154(A) (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154(A) (2) as it pertains to Corrective Work Order Items 3 and 4 as set forth in Finding of Fact 18 (c) hereof. 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154(A) (3) and A.A.C. R4-9-108, the workmanship rule, as they pertain to Corrective Work Order Items 2, 3, 4, 6 and 8 as set forth in Finding of Fact 18 (b), (c), (f) and (h). 6. This tribunal further determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154(A) (23) as it pertains to Corrective Work Order Items 6 and 8 as set forth in Finding of Fact 18 (f) and (h). 7. This tribunal further determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1143(A) (13) and A.R.S. §32-1124(B) as it pertains to Respondent’s invoices as set forth in Finding of Fact 19. 8. It is further determined and concluded that based on the violations set forth in Conclusions of Law 4, 5, 6 and 7 above Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154(A) (70 as charged in the issued Citation in Case No. 08-2032. 9. It is also determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154(A) (9). 10. This tribunal further determines and concludes that the weight of credible, probative and relevant evidence established that Respondent failed to act in good faith in response to the Registrar’s Corrective Work Order. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing in this matter without legal or reasonable excuse. 11. It is further determined and concluded that the prior disciplinary revocation of Respondent’s Arizona contractor’s license as referenced in Finding of Fact 3 shall serve as a factor in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class KB-01 license of Respondent be revoked.[3] Done this day, March 19, 2009.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] The Corrective Work Order delineated six (6) complaint items and three (3) complaints (CWO items 7, 8 and 9) added at the jobsite inspection which Respondent failed to attend. [2] Complainant could not recall the date of the $12, 500.00 payment; the $6,000.00 payment was made on or about June 29, 2007. [3] 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 in this matter will be forty (40) days from the date of that certification.

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