ALJDEC decisions subject to certification as final

10F-1027-ROC · Registrar of Contractors · 2010-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2010 APPEARANCES: Complainants David Mahoney and Troy Dagen appeared on their own behalf. Thomas Van Drome appeared on behalf of Respondent Thomas L. Van Drome, Inc., doing business as Home Doctors. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Thomas L. Van Drome, Inc., doing business as Home Doctors (“Home Doctors”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Home Doctors is the holder of a Class B- license (No. 111250) issued by the Registrar of Contractors (“ROC”). Thomas Van Drome is Home Doctors’ qualifying party and corporate officer. 2. On March 16, 2009, Complainant David Mahoney contracted with Home Doctors for the construction of an Arizona room addition and shed to his existing home. Mr. Mahoney initially paid $16,625.00 to Home Doctors. 3. Mr. Mahoney is a part-time resident of Arizona. Home Doctors commenced its work on the home while Mr. Mahoney was away. When Mr. Mahoney returned to Arizona, he discovered the project had been red-tagged by the City of Apache Junction. Notwithstanding the numerous code violations by Home Doctors, Mr. Mahoney allowed Home Doctors to continue working on the project. Mr. Mahoney also paid Home Doctors an additional $7,450.00, representing one half of the second progress payment. 4. On September 9, 2009, Mr. Mahoney filed a complaint against Home Doctors with the ROC alleging the following: i. Floor 1 ½” higher than Park model ii. Walls not plumb iii. Floor not level iv. Not enough room for washer/dryer v. Shed not framed vi. 31 written violations from City vii. Removed siding from Park model voiding warranties viii. Overall shoddy workmanship ix. Possibly used unlicensed plumber & electrician? x. Entrance door buried in floor xi. Room drywalled before roof on xii. Insulation & drywall ruined xiii. Siding removed outside deck and roof

5. ROC Inspector Geoff Galgan investigated Mr. Mahoney’s complaint. 6. On September 29, 2009, Inspector Galgan conducted a jobsite inspection. Troy Dagen, the general contractor subsequently hired by Mr. Mahoney to take over the project, his wife, Pam Dagen, Jim Le Comte, a neighbor, and Mr. Van Drome were present for the inspection. 7. On October 5, 2009, following the jobsite inspection, Inspector Galgan issued a Corrective Work Order (“CWO”) under which the ROC gave Home Doctors 15 days to take corrective action as follows: 1. Floor of room addition is higher than that of the existing structure – contractor to correct by the appropriate means 2. Walls are not plumb - contractor to correct by the appropriate means 3. Floor is not level - contractor to correct by the appropriate means 4. Laundry area, as built, is too narrow for the placement of the washer and dryer – contractor is to ensure that sufficient space exists for the placement of the appliances and if not to correct by the appropriate means 5. Shed has not been installed as contracted for - contractor to correct by the appropriate means 6. The local building authority has issued thirty-one violations for various infractions – contractor is to correct any violation as directed by the local building authority 7. Siding was removed from the manufactured home thus voiding the warranty – this inspector could not affirm or deny if a warranty exists or if actions by the contractor voided said warranty, no action required of the contractor 8. Overall shoddy workmanship – it is the opinion of this inspector that the wording of this complaint item is excessively vague 9. Respondent did not use licensed electrical or plumbing contractor as required - contractor to correct by the appropriate means 10. Entrance door is improperly installed - contractor to correct by the appropriate means 11. Drywall was installed before the room was dried in and the roofing is still not installed - contractor to correct by the appropriate means 12. a. Insulation and drywall was ruined by rain water infiltration that was allowed by the lack of proper roofing – it is the opinion of this inspector that what appeared to [be] staining that would be consistent with water infiltration visible on the several dry walled areas, contractor to correct by the appropriate means 12. b. Insulation was ruined by water infiltration – this inspector was not able to affirm or deny if damaged (sic) has occurred to the insulation, no action required of the contractor 13. Siding was removed on the exterior of the manufactured home – this inspector agrees that areas of siding were removed but there remains a question of if the siding is a structural component or a cosmetic application and lacking information that would substantiate if it is or not this inspector cannot affirm or not if it presents a problem, no action required of the contractor

8. Inspector Galgan testified consistently with the directives contained in the CWO. Inspector Galgan further testified that Mr. Van Drome confirmed to him that plumbing and electrical work was performed by Home Doctors’ employees. Inspector Galgan testified that because these are “protected trades”, electrical and plumbing work must be performed by licensed electrical and plumbing contractors. Inspector Galgan testified that he did not conduct a pre-hearing inspection because all work had been corrected by others. Inspector Galgan also testified that Mr. Mahoney and Mr. Dagen would not allow Home Doctors back on the property to perform corrective work. 9. Mr. Le Comte testified that he did not previously know Mr. Mahoney or Mr. Dagen. Mr. Le Comte resides in the community down the street from Mr. Mahoney and had observed the construction as it progressed. Mr. Le Comte had been a licensed plumber and was in the construction industry for approximately fifty years. Mr. Le Comte testified that from the commencement of the project, he observed problems. Mr. Le Comte testified that he went to the manager of the community to complain, who in turn contacted the City of Apache Junction to request an inspection. Mr. Le Comte testified that Home Doctors did not correct the cited violations prior to progressing further with the construction. Mr. Le Comte advised Mr. Mahoney to not pay any additional monies to Home Doctors. Notwithstanding such advice, Mr. Mahoney paid a progress payment to Home Doctors. 10. Troy Dagen, a licensed general contractor, was contacted by RV Trailers, the entity from which Mr. Mahoney purchased his home, to view the construction. Mr. Dagen “believed it was the worst job he had ever seen” and requested that the city inspector advise him as to what needed to be done to rectify the situation. Mr. Dagen testified that the only reason he became involved in the matter was because RV Trailers had asked him to do so. Mr. Dagen testified that he “gutted” the project and hired a licensed electrician and plumber to perform the electrical and plumbing work. Mr. Dagen took over the project on September 29, 2009, and completed it on November 24, 2009. Mr. Dagen acknowledged that he and Mr. Mahoney did not give Home Doctors an opportunity to correct its work because Mr. Dagen took over the project the day of the jobsite inspection and prior to the issuance of the CWO. Mr. Dagen testified that the reason Home Doctors was not given an opportunity to correct its own work was because it had failed to use licensed electrical and plumbing contractors for the project. 11. Mr. Van Drome acknowledged that Home Doctors failed to use licensed electrical and plumbing contractors for the project, and further, that it did not intend to do so for the corrective work. Mr. Van Drome testified that Home Doctors was working on the thirty-one deficiencies found by the city inspector when it was terminated by Mr. Mahoney. Mr. Van Drome acknowledged that there were problems with the project and further acknowledged using inexperienced laborers that are not familiar with framing and inspection procedures. Mr. Van Drome further acknowledged that Home Doctors went beyond the scope of work for the initial inspection prior to calling for an inspection, that the insulation and sheet rock were installed in the bathroom prematurely, and that the roof was framed incorrectly. CONCLUSIONS OF LAW In this proceeding, Mr. Mahoney and Mr. Dagen bear the burden to prove, by a preponderance of the evidence, that Home Doctors is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(17), and/or (A)(23) as charged by the ROC in its December 10, 2009 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Mahoney and Mr. Dagen met their burden of proof as to all four of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state . . .” The Administrative Law Judge concludes, based upon the credible evidence of record, that Home Doctors departed from or disregarded the relevant building codes as evidenced by the numerous violations cited by the city inspector. Therefore, the Administrative Law Judge concludes that Home Doctors violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Home Doctors with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, including Home Doctors’ own acknowledgements, that Home Doctors failed to perform its work at Mr. Mahoney’s home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Home Doctors violated A.R.S. § 32- 1154(A)(3). Under A.R.S. § 32-1154(A)(17), a contractor is subject to discipline for “knowingly contracting beyond the scope of the license or licenses of the licensee.” Home Doctors acknowledged that it performed electrical and plumbing work on the project, notwithstanding that it is not properly licensed to do so. Therefore, the Administrative Law Judge concludes that Home Doctors violated A.R.S. § 32-1154(A)(17). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Home Doctors a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Mr. Mahoney and Mr. Dagen would not allow Home Doctors to perform any corrective work. However, based upon Mr. Van Drome’s acknowledgment that Home Doctors did not intend to used licensed electrical and plumbing contractors for the corrective work, the Administrative Law Judge concludes that Mr. Mahoney and Mr. Dagen were justified and acted reasonably in not allowing Home Doctors further access to the project for the performance of corrective work. Therefore, the Administrative Law Judge concludes that Home Doctors violated A.R.S. § 32- 1154(A)(23). Based on the foregoing, it is appropriate for the ROC to impose discipline against Home Doctors’ Class B- license. 9. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should revoke Home Doctors’ Class B- license. RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Order entered in this matter, Home Doctors’ Class B- license shall be revoked. It is further recommended, in addition to the above-provided penalty, that Home Doctors pay the sum of $500.00 to the ROC by way of a civil penalty pursuant to A.R.S. ( 32-1154(E). The failure by Home Doctors to pay the entire amount of the aforesaid civil penalty, on or before thirty days following the effective date of the Order entered in this matter, shall result in the automatic permanent revocation of Home Doctors’ license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Home Doctors, as defined in A.R.S. (32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, March 31, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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