ALJDEC decisions subject to certification as final

2011A-2903-ROC · Registrar of Contractors · 2011-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2011

APPEARANCES: Complainant appeared through its principals Jim Rogel, Managing Member, and Michele Rogel, Member; no one appeared on behalf of Respondent.

WITNESSES: Jeff Wills, ROC Inspector Jim Rogel Michele Rogel

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent regarding a residential project that serves as Complainant’s principals’ home. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant presented evidence and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations of the law and recommending provisional revocation of the license and a civil penalty.

FINDINGS OF FACT 1. Respondent is the holder of license C-7R.246412-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). That license is restricted in scope and authorizes Respondent, under the carpentry classification, to perform installation and repair of doors, gates, windows, and accessories. Kevin Black is Respondent’s Qualifying Party. The license was suspended for lack of bond on June 21, 2010, and went inactive on June 28, 2010.[1] 2. In July 2009, Respondent entered into a contract with Complainant to install doors and other fixtures at the Rogel’s residence. Respondent did a poor job and Complainant filed an ROC complaint in May 2011. ROC Inspector Jeff Wills performed an onsite inspection in June 2011 with the Rogels present; Respondent failed to attend . Based on that inspection, Inspector Wills issued a Corrective Work Order (“CWO”) dated June 8, 2011, that identified sixteen (16) workmanship issues and ordered correction of fifteen (15) of them as follows: 1. Inconsistency of color of stain throughout the whole house, does not match sample given, never furnished a color stain sample for us to sign off: Two completely different colors of stain were used for doors and trim in various locations throughout the home. At the time of the inspection, the Complainant did have a sample piece of trim which was used throughout the inspection for comparison. Contractor to correct by appropriate means. 2. Fire door garage – entrance from garage to inside of house – not repaired or finished as stated per e-mail attached with this complaint – cracked wood/split throughout door: All panel seams within the door were visible. Contractor to correct by appropriate means. 3. Door w/glass insert (hallway) to master bedroom, wood split/cracked in the center – not repaired: Per the Complainant, the glass inserts were corrected by others. However, the Complainant pointed out where the seams of this door have been sanded down but never re-stained. Contractor to correct by appropriate means. 4. Patio doors – by master bedroom – back from Canyon Custom Doors w/glass insert – supposed to be finished after install – never finished/stained not completed – multiple doors need adjustment: This was pointed out and observed by the Complainant. This item is related to item #3 above. Contractor to correct by appropriate means. 5. Charged twice for all hardware in the house – see e-mail dated 7/20/10: It is the opinion of this inspector that the Complainant was charged twice for the door hardware. Invoices and other correspondence was shown to the inspector at the time of the inspection by the Complainant and submitted with the complaint to reflect this information. Contractor to correct by appropriate means. 6. Base trim not installed off master bedroom – landing to basement – part of the square footage of the house: The interior door threshold at this transition was pointed out to the inspector at the time of the inspection. Per the Complainant, the threshold is not sealed on either side. This was observed by the inspector. Contractor to correct by appropriate means. 7. Columns in great room never finished. Columns never centered on column support – areas where there is no stain – nail holes not filled in: This was observed by the inspector. Contractor to correct by appropriate means. Complainant also pointed out numerous scratches and chips within the wood columns. Contractor to correct by appropriate means. 8. Damage to drywall from columns being put in. Upper and lower column supports damaged upon installation of the columns: Per the Complainant, this item is the same or related to item #7 above. Contractor to correct by appropriate means. 9. Damage to corner of house – e-mail 8/7/10 agreed to pay for damage per e-mail. Still not received payment: Per the Complainant this was repaired by others prior to the inspection. Per Complainant they want reimbursed by the Respondent due to hiring someone to fix this damage. Per Complainant via email the Respondent stated they would reimburse the Complainant for this but to date, per the Complainant they have not been reimbursed. Contractor to correct by appropriate means. 10. On 7/27/09 as part of the original contract price placing the initial order for hardware along with the rest of the doors, we paid $1,109.15 for the Emtek hardware which was included in check #6078 for a total amount paid of $10,411.44 see invoice included. Then on 2/27/10 hardware again paid for in the amount of $1,274.16 We were asked again to pay on 9/5/10 an additional amount of $1,125.00 for hardware along with additional labor hours for a total cost of $2,910.00, check was issued on 9/28/10 to finish all that needed finishing – had already paid for everything per original contract (see original contract dated 2/27/10) – see e-mail pertaining to additional charges - hardware to be Emtek, hardware substituted for Yale of a lesser quality. As of this date, some of the finish on the Yale hardware is already coming off: Complainant pointed out that the finish (oil rubbed bronze) is wearing off on several door handles throughout the home. Complainant also pointed out to the inspector at the time of the jobsite inspection the contract and invoices that indicate Emtek door hardware was to be installed. However, the inspector confirmed that Yale hardware was instead installed throughout the home. Contractor to correct by appropriate means. 11. Door casing trim does not lie flush w/drywall on all doors throughout the house – door jamb sizing not exact: As pointed out by the Complainant, this is an issue throughout the home at nearly every jamb/casing. Contractor to correct by appropriate means. 12. Door latch areas of doors split from installation of door latch screws – nail holes not filled w/stained filler: This was pointed out by the Complainant. Contractor to correct by appropriate means. 13. All casing and base trim nail holes not filled: This was pointed out by the Complainant at the time of the inspection. This was observed by the inspector in numerous areas throughout the home. Contractor to correct by appropriate means. 14. Fascia board not installed – bedroom #3 over closet doors to cover tracking: This was observed by the inspector – missing trim. Contractor to correct by appropriate means. 15. . . . 16. North and south entrance doors, no weather stripping to seal around doors – striker plate not installed to latch doors properly: This was observed by the inspector. Contractor to correct by appropriate means.

Respondent was required by the CWO to re-activate its license in order to perform the corrective work because the license was inactive at the time the CWO was issued. 3. At hearing, the Rogels testified that Mr. Rogel had corrected one of the items (CWO item 15) before the inspection. The other items that needed correction were not repaired. Inspector Wills testified that he performed a pre-hearing inspection on October 27, 2011, and confirmed that no corrective work has been done. Respondent did not attend the pre- hearing inspection. 4. Complainant’s evidence is uncontested. The Rogels testified at hearing that they would like to give Respondent another chance to comply with the CWO before action is taken against the license. 5. The evidence shows that Respondent did not build in a workmanlike manner and failed to comply with the CWO as listed above. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), (A)(18) (prohibits contracting while a license is suspended or inactive), and (A)(23) (requires compliance with a CWO). The evidence shows that Respondent has violated those provisions as the facts above show. 3. As noted, Respondent’s license is inactive and is suspended by operation of law. Although inactive, the license is current and there is no legal impediment to activating the license if Respondent secures a bond. Pursuant to A.R.S. § 32-1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 4. The appropriate sanction in this matter is to allow Respondent an opportunity to activate its license and make the corrections. If Respondent does not do so, its license should be revoked. Also, a civil penalty is warranted for failure to comply with the CWO. RECOMMENDED ORDER IT IS RECOMMENDED that license C-7R.246412-R, held by Blacks Trim Carpentry, Inc. be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that the fifteen CWO items listed above have been corrected and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides the written proof described above on or before the effective date of the Registrar’s Order, license revocation shall not take place and case 2011-2903 shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanctions provided above, Respondent Blacks Trim Carpentry, Inc., pay a civil penalty of $250.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, November 7, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At hearing, the Rogels had documentation showing that Respondent’s principals had recently filed personal bankruptcy. Since this matter is a regulatory matter brought against the entity known as Blacks Trim Carpentry, Inc., and not against its principals personally, the bankruptcy proceeding does not preclude this disciplinary proceeding. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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