ALJDEC decisions subject to certification as final

08F-2646-ROC · Registrar of Contractors · 2009-02-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2009 APPEARANCES: Complainant: Donna Gamaly appeared, pro per. Respondent: Jonathan Ross, qualifying party, appeared, pro per. Registrar of Contractors: Inspector Eric Ulinger 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 January 8, 2009. 2. Complainant Donna Gamaly (“Complainant”) is the owner of a residence located at 13252 W. Lisbon Lane, Surprise, Arizona (“premises/project”). 3. Respondent Joseph Steven Ross (“Ross”) is an individual doing business as Joseph Ross and Sons Construction (“Respondent”). Jonathan Joseph Ross (J. Ross”) holds and is the qualifying party for Arizona Contractor’s License No. 175173, Class B (General Residential) issued by the Registrar of Contractors (“ROC/Registrar”) May 9, 2002. 4. Complainant filed a complaint with the ROC on February 22, 2008 wherein she alleged four (4) problems with the ceramic tile work performed by Respondent on the premises. Specifically, Complainant asserted: “(1) grout missing throughout premises next to baseboards; (2) incomplete/sub- standard workmanship in laundry room; (3) switched grout colors without consent…; and, (4) left premises in a mess…did not wipe down after grouting…tile dust and garbage everywhere.” 5. ROC Inspector Craig Williams (“Williams”) conducted a jobsite inspection on March 14, 2008 and issued a Corrective Work Order on March 20, 2008 which required Respondent to perform corrective work on items 1, 2 and 3 of the complaint. No remedial action was required on item 4 as it was corrected prior to the jobsite inspection. Williams also determined that a fifth unnumbered item, A/C ducts all need to be cleaned because of tile dust, also required corrective work. 6. On September 15, 2008, the Registrar issued a Citation and Complaint in Case No. 08F-2646 charging Respondent with possible violations of A.R.S. §32-1154(A) (7), (23) and (3) (namely, R4-9-108, the workmanship rule). 7. Respondent filed an answer on September 24, 2008 wherein he asserted, inter alia, that he originally performed the work to appropriate standards and attempted to comply with the subject Corrective Work Order by applying grout and vacuuming air ducts but was prevented from fully completing the corrective work by Complainant’s acts. 8. At the hearing, Complainant testified and submitted Exhibits A, B, C, E, F and G which were marked, admitted and considered. Exhibit D was admitted over objection. 9. Jonathan Joseph Ross (J. Ross”) appeared and testified on behalf of Respondent but submitted no exhibits. 10. Inspector Eric Ulinger (“Ulinger”) appeared and testified on behalf of the Registrar and described his observations at his pre-hearing jobsite inspection on February 11, 2009.[1] 11. On or about January 30, 2008, the parties entered into an agreement whereby Respondent was to, inter alia, prepare the premises’ kitchen, laundry room and hall bathroom for the installation of tile and, thereafter, install tile and grout provided by Complainant “throughout except b.rooms [sic] and closets – approx. 1000 square feet” for a total sum of $2,250.00. (Exhibit A) 12. In accordance with the agreement, Complainant paid Respondent the one half $1,125.00 down payment on January 30, 2008. (Exhibit B) 13. On or about February 1, 2008, Respondent completed the work at which time Complainant paid him the second one half of the agreement price ($1,125.00) plus an additional $114.00 for materials. (Exhibit C) 14. Complainant asserts that Respondent failed to perform the subject tile work in a workmanlike manner and also left the premises in an unkempt condition as evidenced by photographs taken on or about February 3, 2008, two days after Respondent completed the subject work. (Exhibit D) 15. Pursuant to the Registrar’s Corrective Work Order, J. Ross returned to the premises on April 2, 2008 to perform remedial work. Complainant contended that at that time J. Ross failed to complete the corrective work in a workmanlike fashion and properly clean up the premises including, without limitation, vacuuming the air vents and removing debris. (Exhibit E) J. Ross asserted, inter alia, that all work was done pursuant to minimum workmanship standards and/or Respondent was prevented from doing so by Complainant’s actions and that he removed all debris each time he performed work on the project except for the skids in the garage which were from the tile Complainant purchased. Complainant and J. Ross each asserted that the other became belligerent and/or vulgar at the time J. Ross performed the corrective work on April 2, 2008 the last time Respondent was at the project. 16. Complainant testified that she had no contact with J. Ross or any other representative of Respondent after April 2, 2008 and that Respondent never returned to finish the remedial work and clean up. Complainant further testified that, because of Respondent’s failure and/or refusal to properly adhere to the Registrar’s Corrective Work Order, she was required to hire Keith Jones of Another Handyman, LLC to finish the remedial work and clean up at a cost of $275.00 (Exhibits F and G) in order for her to rent the subject premises. 17. Inspector Ulinger determined at the February 11, 2009 pre- hearing jobsite inspection that certain areas of the tile work needed correction, i.e., voids in the grout existed in front of the laundry room door and in the kitchen. However, Ulinger further related that he could not opine that Respondent was responsible for performing additional corrective work given the unknown actions of a third party handyman on the premises.

APPLICABLE LAW The Citation and Complaint issued by the Registrar of Contractors in Case No. 08-2646 charged Respondent with possible violations of A.R.S. §32- 1154(A) (7), (23) and (3) (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

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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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.

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

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) (3) and A.A.C. R4-9-108, the workmanship rule, by failing to properly grout the subject tile and clean up after performing such work. 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) (23) by failing to properly perform remedial work in accordance with the Registrar of Contractors’ March 20, 2008 Corrective Work Order as pertains to installation and clean up of the grout on the subject tile as well as the removal of debris and vacuuming of air ducts after performing such work. 6. This tribunal further determines and concludes that based on the violations set forth in Conclusions of Law 4 and 5 above, Complainant established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-11454(A) (7) as charged in the issued Citation in Case No. 08-2646. 7. This tribunal further determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence the right to restitution in an amount not less than $275.00, the charges incurred by Complainant for retention of a third party handyman to complete installation and/or clean up of the grout as well as the unkempt conditions left by Respondent.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing twenty (20) days from the effective date of the Registrar’s Order entered in this matter, the Class B license of Respondent be suspended until the Registrar receives written proof that Respondent has remitted to Complainant as restitution the $275.00 cost incurred by Complainant to have the grout completed and/or cleaned up as well as the debris left by Respondent removed and air ducts vacuumed by a third party handyman. IT IS FURTHER RECOMMENDED that, in the event Respondent remits the stated sum to Complainant on or before expiration of the twenty (20) days from the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place.[2] Done this day, February 19, 2009.

_______________________ Brian E. Smith Administrative Law Judge

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

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

By ______________________ ----------------------- [1] Inspector Ulinger was not present at the original jobsite inspection. Inspector Williams did not appear at the hearing and no reason was given for his absence. [2] 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