ALJDEC decisions subject to certification as final

2010A-308477440-ROC · Registrar of Contractors · 2011-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2011 APPEARANCES: Mo Ashraf appeared personally. Extravagant Remodeling, L.L.C. was represented by its authorized representative, Edward Garcia. 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. Extravagant Remodeling, L.L.C. (“Respondent”) is the holder of License No. 238044, a Class K-61 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Mo Ashraf (“Complainant”) contracted with Respondent for remodeling work to be performed at Complainant’s residence located at 168 W. Myrna Lane, Tempe, Arizona. 3. Complainant filed a written Complaint with the Registrar alleging workmanship violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1158, and (23). 5. In response to the filed Complaint, the Registrar’s assigned inspector, Beau Cruz, performed a jobsite inspection on December 17, 2010, to view Complainant’s items. During the inspection, Complainant, using explicit language, twice threatened to perform a sexual act involving the mother of Respondent’s member and qualifying party, Ed Garcia. Understandably, Mr. Garcia took offense to Complainant’s language about his mother. 6. During the jobsite inspection, Complainant also accused Inspector Cruz of being biased against him. There is no evidence of Inspector Cruz being biased. On the contrary, it appears that Inspector Cruz remained professional during the inspection while dealing with Complainant’s obscene, aggressive, and uncooperative behavior. 7. After completing the inspection, Inspector Cruz issued a Corrective Work Order dated December 21, 2010. 8. The Corrective Work Order required Respondent to timely correct the following items: The contractor is to correct the following by the appropriate means and as per contract

Complaint 1) Interior Paint; many places it shows 2 different colors: Cut in between painted ceilings and walls has not been properly done or completed as per contract.

Complaint 2) Flooring; some tiles still need grout and at master bedroom there is still a broken piece of tile: Areas in the hallway and entry way were [sic] insufficient grout was applied as well as a missing border tile at the entry to the master bedroom area. Area of missing grout noted in hallway.

Complaint 3) Side boards; poor installation, poor cocking [sic], nails still visible: Two protruding [sic] from the baseboard in the hallway wall that adjoins guest bathroom. Baseboard trim to right of hallway closet is not properly secured or caulked. Master bedroom door jamb assembly has not been properly secured to frame. Doors with the exception of the entry doors[,] master bathroom exterior door, garage fire and access doors have been removed and are located in the garage and have are [sic] not completely painted/stained. Contractor to finish as per contract.

Complaint 4) Doors; two different color trims: Trim was in the garage and was not completed by the contractor. It is this inspector’s opinion that the variances in color, [sic] is due to contractor has not applied varnish to all, therefore the discrepancy in color. Contractor finish as per contract.

Complaint 5) Kitchen; poor granite, still needs to be finished: Seams for the granite overlay around the windows were extremely visible and measured in [sic] 1/8 inch. Joints should not exceed 1/16” in width. Contractor should make necessary repairs.

Addenda

Complaint 7) Floor in master bedroom slopes down: Carpet floor sloped down towards the north at an average of 2 inches in 8 feet and leveled out in ten feet to level again in the same direction. Contractor is to properly prepare substrate under carpet.

Complaint 8) Floor in front and rear bedrooms slope down: Carpet in both bedrooms sloped from N to S ½ to ¾ inches in 4 feet. Contractor is to properly prepare substrates under carpets.

Complaint 9) Door trim (casing) has not been installed or properly finished: Trim located in the garage as mentioned in complaint item #4, although it was also observed that the inner trim for the entry doors, master bathroom exterior door, garage fire and side access doors have not been completed nor properly caulked. Rough sewn [sic] exterior casing trim for the exit doors have not been properly sealed and or caulked.

Complaint 10) Damaged drywall by patio door: Damaged drywall approximately 2” wide x 8’ in length to the left side of patio door.

Complaint 11) Front bedroom ceiling not painted properly; shows different shades of white: Two different shades of white in ceiling.

Complaint 11) [sic] HVAC supply register is missing in the family room: Missing supply register noted on south wall.

7. The Corrective Work Order did not require Respondent to take any action to the following items: Complaint 1) Interior Paint; many places it shows 2 different colors: Living room color on the west wall was two different shades. This inspector determined that the color variation was due to the lighting and shaded areas. Color on the hallway is different shade than color picked. Color was selected by the complainants [sic] via color chart from Home Depot and picked Home Depot color “Basketry”. [sic] Complainant’s wife then took sample to Dunn Edwards and had same color match with their paint. Different paint formulas, [sic] from two different suppliers.

Complaint 5) Kitchen; poor granite, still needs to be finished: Countertop seam at the corner to the right of the sink was measured at approximately 1/32 of an inch, within ROC Standards of not to exceed 1/16 of an inch.

Complaint 6) Bathroom; poor installation of commode: This inspector determined that toilet was properly installed and did not move and was brought to complainant’s attention. It was determined that toilet seat was loose and complainant was satisfied with explanation.

8. On May 10, 2011, Inspector Cruz performed a pre-hearing jobsite inspection at Complainant’s residence. 9. Inspector Cruz determined that the Complaint items ordered to be corrected in the Corrective Work Order had been properly repaired by other contractors, with the exception of the following items: Complaint 5, relating to the seams for the granite overlay around the windows; Complaint 7; and Complaint 8. 10. At hearing, Inspector Cruz testified that Complainant had displayed violent tendencies and used obscene language during a jobsite inspection.[1] 11. While not condoning Respondent’s work that failed to meet workmanship standards as determined by Inspector Cruz, Complainant’s violent and obscene conduct during the course of the project and the Complaint process is inexcusable. Complainant’s conduct amounted to constructive denial of access preventing Respondent from completing the project and complying with the Corrective Work Order to remedy its deficient workmanship. There is credible evidence that Complainant had the remedial work performed by other contractors. 12. Respondent’s contract with Complainant does not comply with the statutorily required minimum elements of a construction contract. For example, Respondent’s contract does not contain the following statutorily required information: Respondent’s business address; Complainant’s address; the date the parties entered into the contract; the estimated completion date; and notice of Complainant’s rights to file a complaint against Respondent with the Registrar for violations of A.R.S. § 32-1154(A). CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R4-9-108. 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar and as set forth in the Corrective Work Order. 4. Complainant failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Complainant’s inappropriate and threatening behavior constituted constructive denial of access necessary for Respondent to comply with the Corrective Work Order. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent’s contract with Complainant did not contain the statutorily required minimum elements of a contract. 6. Pursuant to A.R.S. § 32-1154(B), the Registrar may impose discipline, or it may place conditions to avoid discipline against Respondent’s contracting license for the above described statutory and regulatory violations. However, the evidence of record supports a conclusion that only discipline should be imposed upon Respondent’s contracting license. RECOMMENDED ORDER Respondent’s License No. 238044 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides written proof, and such proof is approved by the Registrar, that Respondent has become fully compliant with the provisions of A.R.S. § 32- 1158. If Respondent provides written proof to the Registrar that it has become fully compliant with the provisions of A.R.S. § 32-1124(B) on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves such proof of compliance, then the above- provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 2010-[number redacted] shall be placed on probation for a period of 90 days commencing on the date of the Registrar’s approval of Respondent’ proper compliance with the terms of this Order or the effective date of the Order entered in Case No. 2010-[number redacted], whichever is later. 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, May 31, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] When Mr. Garcia asked Inspector Cruz to repeat the obscene language used by Complainant, Inspector Cruz testified that it would be inappropriate for him to repeat that language at the hearing.

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