ALJDEC decisions subject to certification as final

2011A-5108-ROC-com · Registrar of Contractors · 2012-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2012, at 8:00 a.m. APPEARANCES: Joy Baker (hereinafter “Complainant”) appeared on her own behalf. Diamond B Remodeling and Home Improvement LLC (hereinafter “Diamond”) appeared through its attorney, Les A. Boegemann, Esq., A. Boegemann Law Firm LLC. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. Diamond is the holder of License No. C-61.239447-R issued by the Registrar of Contractors.[1] 2. The Order Setting Compliance Hearing provided, in pertinent part, as follows: On March 21, 2012, the Registrar issued an Order providing that Respondent’s C-61.239447-R License would be suspended on the effective date of the Order and remain suspended until the Registrar received and accepted proof that Respondent fully complied with the terms of the written Corrective Work Order issued in this matter. If Respondent fully complied with the terms of the written Corrective Work Order on or before the effective date of the Order, then Respondent’s C-61.239447-R License would not be suspended and this matter would be closed. The effective date of the Order was April 30, 2012.

On or about April 19, 2012, Complainant submitted written correspondence in this matter with the Registrar providing, among other things, that Respondent “came to do the [C]orrective [W]ork [O]rder. [Respondent] finished the work [on] April 16, 2012. The work is so ‘bad’ [Complainant] will not accept it. [Complainant] need[s] another inspection.”

On or about April 20, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, that Respondent “hereby request[s] a compliance inspection. All work according to the [C]orrective [W]ork [O]rder has been completed.”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the normal course of docketing in the Tucson area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not Respondent has complied with the terms of the Registrar’s March 21, 2012 Order. If it is determined that Respondent failed to comply with the terms of the Registrar’s March 21, 2012 Order, Respondent’s C-61.239447-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent fully complied with the terms of the March 21, 2012 Order, and all work performed meets minimum workmanship standards, no discipline shall be imposed upon Respondent’s License, and this matter will be closed.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

Note: Complainants are not obligated to allow access to Respondent or its representatives to perform any further corrective work prior to the Compliance Hearing, as Respondent notified the Registrar that it has fully complied with the terms of the Registrar’s March 21, 2012 Order.

3. The assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted a pre-hearing Compliance Inspection on September 26, 2012. Inspector Nieves stated that Complainant would not allow Diamond in her residence for the pre-hearing Compliance Inspection.[2] 4. Inspector Nieves testified that he examined each of the items that the Registrar of Contractors’ March 21, 2012 Order required Diamond to correct. Inspector Nieves testified that the banister is still loose, that the trim had not been fully corrected, that the spacers between the spindles had not been fully corrected, that the trim for the baseboards had not been fully corrected, and that the outside T-111 siding between the windows on the front patio had not been fully corrected. Inspector Nieves opined that the Registrar’s March 21, 2012 Order had not been fully complied with.[3] 5. Inspector Nieves testified that the banister would loosen naturally over time. Inspector Nieves stated that Diamond had attempted to repair the banister. Inspector Nieves testified that the banister was tighter than before but still had a deflection of 1/4 inch to 1/2 inch. Inspector Nieves stated that the banister should not move.[4] 6. Inspector Nieves testified that one of the spacers between the spindles was still cut too short. Inspector Nieves stated that one of the spacers was not attached properly and had fallen off the railing. Inspector Nieves acknowledged that he did not know why the spacer had fallen off.[5] 7. Inspector Nieves testified that there was one piece of baseboard trim near the patio doors that had been cut too short. Inspector Nieves stated that the piece of unacceptable baseboard trim had not been replaced.[6] 8. Inspector Nieves testified that the unacceptable piece of baseboard trim was approximately 1/4 inch too short. Inspector Nieves stated that applicable industry standards for “trim work” require a “tight fit.” Inspector Nieves testified that he was relying upon the standard set forth on page 5 of the Workmanship Standards for Licensed Contractors.[7] 9. Inspector Nieves testified that Diamond had screwed in the exterior T- 111 siding between the windows on the front patio. Inspector Nieves acknowledged that the T-111 siding was no longer loose. Inspector Nieves stated that Diamond failed to properly cover the screws that it had installed in the T-111 siding.[8] 10. Inspector Nieves testified that it would not be possible to secure the free-standing banister to make it as “solid as a load-bearing wall.”[9] 11. Inspector Nieves’ testimony is found to be credible. 12. Diamond’s qualifying party, Phillip Earl Bagwell (hereinafter “Mr. Bagwell”), testified Diamond was unable to complete the repairs to Complainant’s banister on April 6, 2012, because the new spindles did not match. Mr. Bagwell stated that he returned to Complainant’s residence on two different dates to complete the corrective action required by the Registrar’s March 21, 2012 Order.[10] 13. Complainant’s neighbor, Naomi Comeau (hereafter “Ms. Comeau”), testified that she was present every time Diamond performed corrective work at Complainant’s residence. Ms. Comeau stated that she personally observed that the banister was still loose when Diamond completed its third day of corrective work at Complainant’s residence.[11] 14. Ms. Comeau testified that the trim was still cut too short and that one of the spacers between the spindles had fallen out. Ms Comeau stated that nail holes were still present and that there were “finger-sized” gaps between the trim and the walls.[12] 15. Complainant acknowledged that she would not allow Diamond to install an “L-Bracket” in her floor to stabilize the banister. Complainant testified that she did not want the “L-Bracket” installed because it would rise above the floor and be visible. Complainant acknowledged that Diamond attempted to correct the loose banister three times.[13] 16. Mr. Bagwell testified that the compliance inspection in this matter occurred more than six months after Diamond completed the directed corrective work. Mr. Bagwell stated that Diamond requested a compliance inspection as soon as the directed corrective work had been completed. Mr. Bagwell testified that the installation of an L-Bracket would resolve the problem of the loose banister but that Complainant refused to allow the installation of an L-Bracket. Mr. Bagwell stated that there was no movement in the banister when Diamond completed its corrective work on the banister. Mr. Bagwell opined that the banister became loose because of normal “wear and tear” or intentional homeowner abuse.[14] 17. Mr. Bagwell testified that Diamond installed the spacers in the banister in a professional and workmanlike manner. Mr. Bagwell stated that the spacers were secured to the banister. Mr. Bagwell opined that the only way the spacer could have fallen off was if it was physically tampered with.[15] 18. Mr. Bagwell testified that there was a possibility that the corner trim molding may have had a 1/4 inch gap. Mr. Bagwell stated that such gaps are normally corrected by filling them with a silicone product. Mr. Bagwell testified that Diamond properly filled all gaps with a silicone product. Mr. Bagwell stated that the only way that a gap could be present was if someone physically removed the silicone product that Diamond had installed.[16] 19. Mr. Bagwell testified that Diamond replaced two pieces of baseboard and that Diamond fully complied with the terms of the Registrar’s March 21, 2012 Order. Mr. Bagwell stated that Diamond installed “Brad Nails” in Complainant’s residence with an air-gun.[17] 20. Mr. Bagwell testified that Complainant actively interfered with Diamond’s ability to perform the corrective work required by the Registrar’s March 21, 2012 Order. Mr. Bagwell stated Diamond was required to leave Complainant’s residence so that Complainant could take her dog to the vet. Mr. Bagwell stated that Complainant does not possess a dog.[18] 21. Eddie Salcido (hereinafter “Mr. Salcido”) testified that he performed work at Complainant’s residence as one of Diamond’s employees. Mr. Salcido stated that he performed work on all of the items set forth in the Corrective Work Order. Mr. Salcido testified that it was a difficult work environment as Complainant and her friend were constantly watching him work. Mr. Salcido opined that Diamond fully complied with the terms of the Registrar’s March 21, 2012 Order.[19] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. There was no credible evidence that Complainant denied reasonable access to Diamond or that Complainant damaged or sabotaged Diamond’s corrective work. 4. The banister is still loose, the trim has not been fully corrected, and the exterior T-111 siding on the exterior of the front porch has not been fully corrected. This Tribunal concludes that Diamond has failed to fully comply with the terms of the Registrar’s March 21, 2012 Order. 5. A licensed contractor is not entitled to an unlimited period of time or an endless succession of opportunities that reduce, eliminate, or terminate disciplinary action against the contractor’s license. RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 61.239447-R of Diamond be immediately suspended until the Registrar of Contractors receives, and accepts, written proof that Diamond has caused a properly licensed contractor of Complainant’s choice, at Diamond’s sole expense, to fully comply with the terms of the Registrar’s March 21, 2012 Order. It is further recommended that if Diamond provides acceptable written proof that it has caused a properly licensed contractor of Complainant’s choice, at Diamond’s sole expense, to fully comply with the terms of the Registrar’s March, 2012 Order then the above provided license suspension shall be lifted and that this matter shall be closed.

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, October 16, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of the prior license record of License No. C-61.239447-R of Diamond as reflected on the Registrar of Contractors’ public website on October 15, 2012. Such prior License record reflects that said license is current with two open complaints.

[2] 10/3/12 Hearing Record (hereinafter “H.R.”) at 13:29-14:18. [3] H.R. at 14:19-18:57. [4] H.R. at 21:15-26:41. [5] H.R. at 26:43-29:02. [6] H.R. at 29:04-29:33. [7] Workmanship Standards for Licensed Contractors (June 2009) at page 5 provides, in pertinent part, as follows: 1. PD Poor workmanship on interior trim. AT All joints on molding, casing, etc., should fit and be securely attached, as well as properly filled and sanded. CR Contractor should make necessary repairs. [8] H.R. at 38:29-39:09. [9] H.R. at 41:50-43:02. [10] H.R. at 46:04-49:32. [11] H.R. at 50:01-56:28. [12] H.R. 53:24-55:36. [13] H.R. at 1:20:50-1:22:31. [14] H.R. at 1:31:37-1:39:19. [15] H.R. at 1:39:57-1:42:26. [16] H.R. at 1:42:37-1:44:46. [17] H.R. at 1:44:46-1:53:58. [18] H.R. at 1:54:00-1:56:34. [19] H.R. at 2:25:45-2:46:49.

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