ALJDEC decisions subject to certification as final

2011A-1384-ROC · Registrar of Contractors · 2011-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Robert Gehrke. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C-21 (No. 266223) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a construction agreement for the Respondent to perform a landscaping and construction project at the Complainant’s residence. 3. During the course of construction, the Complainant became increasingly dissatisfied with the Respondent’s workmanship, and the parties experienced repeated disagreements at the construction site. 4. Undisputed credible testimony and evidence established that during the construction process, the Respondent inadvertently destroyed a new outdoor wood burning pizza oven. 5. Undisputed credible testimony and evidence established that the Complainant paid the sum of $2,645.40 for the outdoor wood burning pizza oven. 6. There was no dispute that the parties then held a jobsite meeting regarding the Respondent’s workmanship and the destroyed pizza oven. 7. Credible testimony and evidence established that the jobsite meeting at the Complainant’s residence turned into a heated oral confrontation and that as a result of the heated conversation, the Complainant believed that he was in physical danger and required the Respondent to leave the Complainant’s residence. 8. Credible testimony and evidence established that the Respondent behaved in an inappropriate and unprofessional manner during this confrontation. 9. When the parties were unable to resolve their differences, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 10. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection. 11. The assigned Agency Inspector’s Jobsite Inspection Notes provide as follows: 1. Loose fitting flagstone – 50 total: There were several pieces of flagstone pointed out by the Complainant that are loose within the mortar. The Complainant also pointed out and stated many areas are tripping hazards. The Complainant pointed this out at the front walkway, back patio, at and around the barbeque grill area and gazebo. Respondent states the job isn’t finished, he still has work to do but the Complainant kicked him off the property. Contractor to correct by appropriate means. 2. Uneven grout: This was pointed out to the inspector and is somewhat related to item #1 above. Per the Complainant and observed by the inspector, some grout lines between the flagstone is very tight ¼” and other grout lines are more than an inch. In some cases as pointed out by the Complainant, it is a few inches depending how the flagstone was cut or pieced together. Although there is not an actual Registrar of Contractors standard on the width of grout lines or separation between the stone for this type of application; [sic] It is the opinion of this inspector that some areas should be more consistent regarding the width of the grout lines. Contractor to correct by appropriate means. 3. Front walkway mouth uneven at start, was supposed to be straight, not curved: As observed by the inspector, the walkway is curved. However, per both parties, there are no drawings as to the shape of the walkway. Also per the Complainant, the flagstone is sitting directly on the ground with no concrete as a base. Per the Respondent, the flagstone at the walkway is set in concrete. These issues could not be determined by the inspector at the time of the inspection. No action required by the contractor. 4. BBQ island damaged by contractor kicking: As pointed out by the Complainant, the area where the grill would sit was kicked out by the contractor because the contractor was mad. Per the Respondent, this area that was kicked out by him would not have been needed or needed to be changed anyway. Per the Respondent the job is not finished. Contractor to correct by appropriate means as necessary. 5. Unfinished stucco work: As pointed out by the Complainant and observed by the inspector, the stucco work at the bbq [sic] is not done. Per the Respondent, he is not finished with the job. Contractor to correct by appropriate means. 6. Unfinished flagstone work – under oven stand: This was pointed out and observed by the inspector. Contractor to correct by appropriate means. 7. Property clean up: An area of garbage and materials at the north end of the property near the gate was pointed out to the inspector. Per the Respondent they usually clean up when the job is completed. Per the Respondent he is not complete nor has he been given the opportunity to complete. Contractor to correct by appropriate means. 8. Damaged wood burning oven, unsalvageable per manufacture: Per the Respondent he will replace the oven. Per the Respondent they did make mistakes when installing the oven. Contractor to correct by appropriate means. 9. Unfinished stone work: As pointed out by the Complainant, the stone work around the top of the wood burning oven is not complete nor matches the drawing he was given by the Respondent. Per the Complainant, the type, style and color of the stone is correct, however, per the drawing it is supposed to be stacked, no mortar or grout to be showing. Only about ¼ of the stone is currently installed and in the opinion of this inspector, it does not match the drawing. The way the stone is currently installed, it does have some large gaps between stones and in other areas the stone is installed close together with minimal gaps. Contractor to correct by appropriate means. 10. Poorly installed stone work: Per the Complainant at the time of the inspection, this is the same or related to item #9 above. Contractor to correct by appropriate means. 11. Unfinished stain and treatment on concrete counter: This was observed by the inspector. However, per the Respondent he hasn’t finished the job or reached the point in the job that he would apply the stain to the concrete. Contractor to correct by appropriate means. 12. Miss cut countertop for propane burner: This was observed by the inspector. Contractor to correct by appropriate means. 13. Uneven concrete countertop edge under oven: This was pointed out by the Complainant. Complainant states the reason for the bow or dip at the underside of the concrete is due to the weight of the oven above. Respondent states the bow or dip is not due to weight of the oven, it’s due to the form/wood they used when setting the concrete in place, basically the weight of the concrete bowed the plywood they used when pouring the countertop in place. In the opinion of this inspector most of the weight of the oven is on the outside corners, not the center of the concrete counter. It is the opinion of this inspector if this area of bowed/dipped concrete will be exposed it should be corrected by the appropriate means. 14. Broken countertop edge under oven: This was observed by the inspector at the time of the jobsite inspection. Contractor to correct by appropriate means. 15. BBQ island is too tall at 42”: Per both parties no drawings or dimensions exist on the countertop, only an artist rendering of what the island should look like when complete. This rendering has no dimensions. Both parties disagree as to what was agreed on as far as finished countertop height. No action is required by the contractor. 16. Product paid for not delivered and not installed ie [sic]: propane burner, singe drawer for under BBQ grill. Contractor offered to supply these products at his cost as a favor: Per the Respondent at the time of the inspection, he will install these products. 17. Written start date with finish date of 2-4-11 – to date, not finished: Contractor to correct by appropriate means. 18. Contractor confirmed he is certified to install electric and according to the Registrar he is not: Contractor is out of scope for this type of installation. Contractor should review and reference the rules and scope of his license. Contractor to correct by appropriate means. 19. Contractor confirmed he is certified to extend gas line an according to the Registrar he is not: Contractor is out of scope for this type of installation. Contractor should review and reference the rules and scope of his license. Contractor to correct by appropriate means. 20. Question if contractor is allowed to install flagstone on existing pad: In the opinion of this inspector, the contractor is out of scope regarding this item. Contractor to correct by appropriate means. 21. Landscape lights were broken and or disconnected leaving wire exposed: This was pointed out by the Complainant. Contractor to correct by appropriate means. 22. With signed contract on 1-13-11 a verbal agreement was reached that contractor and I would meet on my property on Monday 1-17-11 to review island layout and front walk design: Contractor to correct by appropriate means as necessary. 23. Reimbursement of 200 square feet of flagstone I had on property reserved to install as stepping stones: Per the Complainant, the Respondent used his personal flagstone for part of the job. Respondent stated the Complainant said he could use it. Both sides disagree with the other. This inspector is not able to make a determination on this issue. No action required by the contractor. 24. Double charged on his invoice: This inspector is not able to make a determination regarding this issue. No action required by the contractor. 25. Jason Ritter, Robbie Ritter and worker Cesar were all given manufactures instructions on how to install the wood burning oven: At the time of the inspection the Respondent stated he would replace the oven. Contractor to correct by appropriate means. 26. When confronted on 2-15-11 regarding my dissatisfaction of the work performed on the patios and the unauthorized installation and destruction of the oven, Jason became irate and uncooperative: This is per the Complainant as listed within the complaint. 27. Jason then became enraged: This is per the Complainant as listed within the complaint. 28. Ritter boys is demanding full payment and a [sic] additional signed contract prior to finishing work and or replacing oven: Contractor to correct by appropriate means. 29. At this time after further inspection I feel his work is inferior, coupled with strong arm tactics of forcing me to sign a new contract I am not comfortable with and the threat of violence I feel it is not in my best interest to have him present on my property: This is per the Complainant as listed within the complaint. 30. Compensation A through M: As explained to both parties at the time of the inspection; the inspector does not have the authority to order any party to refund, reimburse, credit, etc. any monies.

10. On April 4, 2011, the Registrar of Contractors issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 11. There was no dispute that no corrective work was performed by the Respondent at the Complainant’s residence. 12. Credible testimony and evidence established that the Respondent did attempt to gain access to the Complainant’s residence in an effort to comply with the terms of the Corrective Work Order. 13. There was no dispute that the Complainant denied the Respondent access to the Complainant’s residence. 14. Credible testimony and evidence established that the Complainant’s denial of access was based upon the Respondent’s inappropriate behavior at the jobsite. 15. The Complainant’s denial of access is not found to be unreasonable under the circumstances. 16. During the hearing, the Complainant submitted a written bid from an alternative licensed contractor for the removal and replacement of all of the Respondent’s construction work at the Complainant’s residence. 17. Credible testimony and evidence established that the removal and replacement of all of the Respondent’s construction work is not required in order to obtain full compliance with the terms of the Corrective Work Order issued in this matter. 18. Although the Registrar of Contractors normally allows a contractor an additional opportunity to correct his own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this homeowner should not be required to have any further contact with this contractor. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Respondent’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 19. The Respondent is found to be fully responsible for paying restitution to the Complainant in the sum of $2,645.40 for the brick pizza oven that the Respondent inadvertently destroyed. 20. Credible testimony and evidence established that the portions of the construction work performed by the Respondent on the Complainant’s landscaping construction project failed to comply with applicable industry and workmanship standards. 21. Credible testimony and evidence established that the Respondent failed to display his contractor’s license in accordance with the provisions of A.R.S. § 32(1124 (B). 22. Credible testimony and evidence established that the Respondent performed electrical work on the Complainant’s construction project. 23. Credible testimony and evidence established that the Respondent performed plumbing work at the Complainant’s residence. 24. Credible testimony and evidence established that the Respondent knew that the performance of such electrical and plumbing work was beyond the scope of the Respondent’s License. 25. The credible testimony and evidence of record is found to be insufficient and fails to support a finding that the Respondent abandoned the construction project or refused to perform without legal excuse. 26. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to complete the construction project at issue for the price stated in the construction project. 27. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. The credible testimony and evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), A.R.S. § 32-1154 (A) (9) (failure to complete for the price stated). 5. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license), A.R.S. § 32-1154 (A)(17) (knowingly contracting beyond the scope of the license of the licensee), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4- 9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar receives and accepts written proof that the Respondent has (1) caused a properly licensed contractor of the Respondent’s choice to fully comply with the terms of the Corrective Work Order issued in this matter and (2), as restitution, paid the Complainant the sum of $2,645.40 for the new pizza oven the Respondent inadvertently destroyed and (3) provided written proof acceptable to the Registrar of Contractors that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) (display of license) and (4) caused a properly licensed electrical contractor to inspect and approve the electrical work performed by the Respondent at the Complainant’s residence and (5) caused a properly licensed plumbing contractor to inspect and approve the plumbing work that the Respondent performed at the Complainant’s residence. It is further recommended that if the Respondent, utilizing a properly licensed contractor, causes the terms of the Corrective Work Order to be fully complied with and provides proof acceptable to the Registrar that the Respondent has caused properly licensed electrical and plumbing contractors to inspect and approve the electrical and plumbing work that the Respondent has performed at the Complainant’s residence, and provides written proof acceptable to the Registrar that the Respondent has paid the sum of $2,645.40 to the Complainant as restitution for the destroyed pizza oven, and provides written proof acceptable to the Registrar that the Respondent Is in full compliance with the applicable provisions of A.R.S. § 32-1124 (B), on or before the effective date of this Order, then the above provided License suspension shall not take place, and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, September 23, 2011.

/s/ M. Douglas 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