ALJDEC decisions subject to certification as final

2011A-4656-ROC · Registrar of Contractors · 2012-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19, 2012

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by Managing Member Robert Monical, and Qualifying Party and Member Roger Sinnott.

WITNESSES: Rick Oelke, ROC Inspector Paul Brennan Marilyn Brennan Gregory Henley, Qualifying Party for HCH Contracting, Inc. Tremaine Sanders, former employee of Respondent Roger Sinnott Robert Monical

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action against Respondent alleging abandonment of the project, poor workmanship, failure to follow building codes, and failure to comply with a Corrective Work Order with regard to a bathroom remodel done by Respondent at Complainants’ home. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. At the hearing, the parties presented evidence, including admitted Exhibits B-1 through B-11 (photographs), C-1 through C-4, D-1 through D-11, E-1 through E-8, F-1 through F-8 (photographs), G, H-1 through H-10, and J-1 through J-8 (photographs) submitted by Complainant and admitted Exhibits 1, 2, and 3 submitted by Respondent. The parties also presented 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 that Respondent has violated the contracting statutes and should have its license revoked. FINDINGS OF FACT 1. Respondent was the holder of license KB-2.271015-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorized Respondent to perform general residential and general small commercial construction. Roger Sinnott was the Qualifying Party. The license was voluntarily cancelled in October 2011. 2. On July 9, 2011, Complainants hired Respondent to remodel their bath/shower in the master bathroom to create a walk-in “snail” shower with a glass block wall and two shower heads. The written contract[2] did not establish a completion date, but Mr. Brennan testified that one was established by verbal agreement later. That date was July 29, 2011.[3] Also, uncontested evidence showed that Respondent did not obtain a building permit for the work at the start of the project, even though one was required. 3. Paul Brennan testified about what took place while Respondent was working on the project. Mr. Brennan is a retired construction foreman who is familiar with homebuilding. He is found to be a knowledgeable, honest, and credible witness, and his testimony is given great weight. 4. Mr. Brennan testified that his contact at that time was exclusively with Roger Sinnott, who was doing the work himself (sometimes with a helper). Mr. Brennan testified that Mr. Sinnott had very erratic working hours and usually did not work but a few hours per day. This concerned him because of the expected completion date of July 29, 2011. A few weeks into the project, Mr. Sinnott requested a change order for $500 to install the wall tile diagonally. Mr. Brennan was not happy with the request and thought it was “bogus.” He told Mr. Sinnott what he thought, but went ahead and agreed to it so that the work would keep going. Mr. Brennan also testified about sloppy work habits, or inconsiderate “housekeeping” as he termed it, that made a mess in the house in areas other than the work area. Photographic Exhibits confirm that testimony.[4] 5. On July 29, 2011, the work was far from completion. Mr. Brennan had had enough. Robert Monical, the Managing Member of Respondent, had become involved and was attempting to help get the job completed. However, on August 1, 2011, there was still much work to do, and the work that had been done was poor. Mr. Brennan fired Respondent from the job and filed a complaint with the ROC. He testified that he fired Respondent because of Respondent’s poor workmanship and unprofessional conduct. He also did not believe that Respondent was capable of completing the job expeditiously and with good workmanship. The evidence shows that Mr. Brennan’s conclusions were warranted. 6. In August 2011, ROC Inspector Rick Oelke inspected Respondent’s work and issued a Corrective Work Order (“CWO”) ordering corrective work on thirteen items as follows: Per Title 32, Chapter 10, Arizona Revised Statutes, Rule R4-9-108, contractor is required to assure all required permits have been obtained, and required inspections on the work involved have been passed. Failure to comply with municipal requirements is also a violation of ARS §32-1154.A.2

No further work by the contractor should be attempted without obtaining and complying with applicable municipal inspections. Contractor is responsible to make any required corrections or modifications at the expense of the contractor.

1) Stucco finish on the westerly side of the house is confirmed not to reasonably blend with the existing stucco it is adjacent to. Contractor should correct the condition by appropriate means.

2) Tile installed on the shower walls is confirmed to have excessive lippage. Contractor should identify unacceptable lippage and correct by appropriate means.

3) Wall tile grouting has been observed to have cracks, voids, and generally unacceptable conditions. Contractor should correct the wall tile grouting by appropriate means.

4) The pitch of the shower floor is confirmed to not have proper pitch to the shower drain. Water on the shower floor should run to the shower drain and not puddle or have negative pitch. Contractor should correct the floor tile pitch by appropriate means.

5) Floor tile grouting has not been completed. Contractor should complete work as contracted in a professional, workmanlike manner.

6) Soap dish installation observed is unacceptable. The soap dish should be installed in a waterproof manner and have a professional, workmanlike finish appearance. Contractor should correct the condition by appropriate means.

7) (*see #6 above)

8) The shower pan has not been installed per manufacturer requirements. Redgard published technical data provides specific installation requirements for proper product usage. Additionally, alternative waterproofing methods not specifically approved in the AHJ [Authority Having Jurisdiction] adopted Building Codes are to be submitted and reviewed prior to installation. Contractor should correct the condition by appropriate means.

(http://www.custombuildingproducts.com/docs/TDS104_RedGard_3_11.pdf?use r=arc&lang=en)

9) Grout smearing was observed on the ceiling of the new shower. Additionally, the new drywall repair has not been completed. Contractor should correct the conditions by appropriate means.

10) The glass block wall is verified to not be plumb or straight. Walls must be straight, and plumb within ¼” top to bottom. Contractor should correct the condition by appropriate means.

11) Grouting of the glass block wall is incomplete. Grouting work installed is inconsistent, and has not been properly cleaned. Grouting should be completed in a professional, workmanlike manner. Contractor should correct the condition by appropriate means.

12) Glass block should have regular, consistent spacing and alignment. Work observed is unacceptable. Contractor should correct the conditions by appropriate means.

13) Door trim has not been reinstalled. Contractor should complete the work and install the door trim.

Inspector Oelke testified at the hearing about his findings. He pointed out that much of the workmanship was very poor and far below standards. He emphasized that there were obvious building code violations that he could observe. That circumstance raises a question about violations that he could not observe. Because no inspections were performed by the local building authority before the walls were put up, there may be violations within the walls that were not visible to him at inspection. 7. The CWO was issued on September 1, 2011, and Respondent was given days to comply. Mr. Brennan decided to allow Respondent an opportunity to do the corrections and gave Respondent access to the jobsite. Mr. Monical was more involved at that time and this improved the relationship somewhat. 8. Respondent began to attempt the corrective work, but because of poor project management, it was not likely to be completed within the time limit. On September 14, 2011, Respondent had installed a shower pan and filled it with water to water test it overnight. Complainants were in another part of the house for several hours. When they returned to the master bedroom that night they discovered flooding from the shower pan in the master bathroom. They called Respondent, but Respondent did not respond. They used towels to soak up the water and in doing so prevented any water damage to the wood flooring in the bedroom. However, Complainants were not happy with the lack of response from Respondent. At that point, again, Complainants were done with Respondent. In addition, Mr. Monical sent some emails to Complainants over the next few days stating that the water leak “puts a stake in Accure,“ that he was not going to have Mr. Sinnott do any more work at Complainants’ home, and that he was going to shut down the contracting business.[5] This, quite reasonably, led Complainants to believe they had no choice but to hire others to complete the job. 9. Complainants called Gregory Henley to testify at the hearing. He is the Manager and Qualifying Party for HCH Contracting, Inc., a general contractor who came in after Respondent to complete the work. He credibly testified that it was necessary to take down all of the tile that Respondent had placed and redo it. He also showed through testimony and photographs in the Exhibit J series how he performed the work. That work was done in one day and exceeds minimum workmanship standards. That work cost Complainants $6,825.32. 10. The evidence shows that on September 14, 2011, Respondent obtained a permit from the local building authority. However, no inspections of the work behind the walls have been performed. 11. The greater weight of the evidence supports Inspector Oelke’s testimony and conclusions, as well as Mr. Brennan’s. Thus, the evidence shows abandonment, failure to follow applicable building codes, poor workmanship, and failure to comply with the CWO. The evidence shows severely deficient workmanship, work ethic, and work product. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] 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.[8] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1)(abandonment of a contract without legal excuse), (A)(2)(failure to follow plans, specifications or building codes), (A)(3) by way of ROC Rule R4-9-108 (failure to meet minimum workmanship standards), and (A)(23)(failure to comply with a CWO). The evidence shows violations of those provisions. 3. The evidence shows that Complainants had cause to fire Respondent on August 1, 2011, and again on September 15, 2011. The same conduct for which Respondent was fired constitutes abandonment without legal excuse. That included poor workmanship and failure to obtain a permit. In addition, although Respondent attempted to comply with the CWO, its efforts were inadequate, unsuccessful, and showed further poor workmanship. 4. A review of current ROC records shows that Respondent’s license is voluntarily cancelled. Pursuant to A.R.S. § 32-1154(C), the cancellation 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. 7. The appropriate sanction in this matter is revocation of the license. The evidence shows the Respondent is not competent to perform contracting work in this State. Complainants may file a claim with the Residential Contractors’ Recovery Fund if they wish to try to recover damages. RECOMMENDED ORDER IT IS RECOMMENDED that license KB-2.271015-D, held by Accure Contracting, LLC, be revoked beginning the effective date of the Registrar’s Order. IT IS FURTHER RECOMMENDED that along with the sanction provided above, Accure Contracting, LLC pay a civil penalty of $500.00 to the Registrar of Contractors for failure to comply with the CWO, 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, February 8, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At hearing, Paul Brennan moved to add his wife Marilyn Brennan to the complaint as a named Complainant. There being no objection, the motion was granted and the caption has been changed. [2] Exhibit G. [3] Exhibits C-1 and C-4. [4] See, for example, Exhibits B-2, B-3, and B-4. [5] Exhibits E-1, E-2, and E-4. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] 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