ALJDEC decisions subject to certification as final

2011A-6881-ROC · Registrar of Contractors · 2012-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 27, 2012, at 8:00 a.m. APPEARANCES: Michael S. Green (hereinafter “Complainant”) appeared on his own behalf. Desert Sun Customs and Restoration LLC (hereinafter “Desert Sun”) appeared through its authorized representative, Casey Levi Conrad (hereinafter “Mr. Conrad”). 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. Desert Sun is the holder of License No. C-61.240872-R issued by the Registrar of Contractors. 2. Desert Sun performed remodeling work on Complainant’s condominium located at 842 S. Langley Ave., Unit 105, Tucson, Arizona. 3. Complainant was dissatisfied with Desert Sun’s workmanship and with its failure to correct its deficient workmanship despite his repeated requests that it do so. 4. When Desert Sun failed to comply with Complainant’s repeated requests to correct its deficient work, Complainant filed a formal Complaint against Desert Sun with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, the assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”) conducted an on- site inspection. Inspector Nieves issued a written Corrective Work Order on January 4, 2012, directing Desert Sun to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order provided in pertinent part as follows: Using the appropriately licensed contractor: Contractor to correct the following by appropriate means: Drywall I. Original popcorn ceiling was removed, but ceilings were not properly floated before texturing and painting: Several areas need to be properly floated. 2. Poor texturing and painting on all ceilings throughout house: Several areas need to be properly textured and painted. 3. Texturing inconsistent and/or voids in many areas on walls: Texturing inconsistent. 4. Many electrical sockets & switches have large gaps in drywall: Gaps need to be properly filled and painted to match existing as close as possible. Painting 5. Ceiling streaked, uneven, and shows roller marks: Paint is not uniform. 6. Poor paint cutting - walls to ceiling and walls to floor moldings: Paint is not even. 7. Poorly filled and painted nail/staple holes in most moldings: Staple holes are not properly filled and painted. 8. Poorly filled and painted nail/staple holes closet shelving: Staple holes are not properly filled and painted. 9. Tinted paint splashed on many moldings and doorframes: Paint needs to be removed. Electrical 10. Exhaust fans not installed in bathrooms: Fans not installed. 11. Hard-wired doorbell not installed: Doorbell not hardwired. 12. Florescent light over kitchen sink not working: Light not functioning. Plumbing 13. Shower leaks in master bathroom: Leaks at sliding glass doors. 14, [.] Water pools in master shower and does not drain: Water ponds. 15. Toilet in guest bathroom not installed properly — lid won’t seat on tank, pushed forward by wall: Toilet set wrong. Guest Bathroom 16. Shower ceiling texturing: Several areas need to be properly textured and painted. 17. Paint on door hinges: Paint needs to be removed. 18. Tub chipped (2): Tub has 2 chips. Carpentry 19. Hallway closet doors not plumb - tops of doors angle from floor to ceiling: Doors not plumb and level. Tile Work 20. Floor tiles lifting and cracking at front door and in master bedroom: Several tiles are lifting and cracked. 21. Floor tile missing grouting against vanity in master bathroom: Grout is missing. 22. Grout in guest bathroom shower cracking: Grout is cracked. 23. Several tiles in master shower not properly grouted: Grout not properly filled in. 24. Several tiles in guest shower not properly grouted: Grout not properly filled in. Appliances Damaged on Installation 25. Fridge damaged on installation: Scratched midway up on stove side. 26. Washing machine damaged on installation: Top of washer bent. 27. Fan in master bedroom damaged on installation: Box cover damaged. 28. Glass chipped on light fixture in guest bathroom on installation: Fixture has chip. 29. Dryer vent not properly installed causing dryer hose to crush: Dryer vent hose is kinked. 30. Antique breakfront damaged on moving by contractor: Trim on top of china cabinet right hand side missing, foot broken. Addendum Plumbing 31. Openings for plumbing at rear of kitchen cabinet and both vanities not cut correctly: Holes are over cut and plumbing exposed. 7. Inspector Nieves testified that he conducted a prehearing inspection on June 18, 2012, and observed that Desert Sun had failed to fully correct items 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 25, 26, 27, 28, 29, 30, and 31 of the Corrective Work Order.[1] 8. Inspector Nieves testified that the scope of Desert Sun’s Class C-61 License is limited to the performance of remodeling or repair work that is valued at less than $25,000.00. Inspector Nieves stated that the contract amount in this matter was $27,664.41, which is beyond the scope of Desert Sun’s Class C-61 License.[2] 9. Inspector Nieves testified that Desert Sun failed to provide its license number on its contract with Complainant.[3] 10. The parties’ contract establishes that the contract amount to be paid to Desert Sun was the sum of $27,964.41 and that Desert Sun failed to provide its ROC license number on the contract.[4] 11. Complainant has paid Desert Sun the total sum of $27,149.20 for its construction work on his residence.[5] 12. Inspector Nieves testified that Desert Sun’s work on all of the remaining items at issue from the Corrective Work Order fails to comply with applicable workmanship standards and requires corrective action. Inspector Nieves stated that Complainant’s new refrigerator and new washing machine appeared to have been damaged during their installation by Desert Sun.[6] 13. Complainant testified that the items set forth in the Corrective Work Order did not comply with plans and specifications and applicable workmanship standards. Complainant stated that Desert Sun damaged his new refrigerator and new washing machine when Desert Sun installed the new appliances in his residence. Complainant produced photographs of each item on the Corrective Work Order that remained at issue to support his testimony.[7] Complainant’s testimony and the supporting photographs are found to be credible. 14. Mr. Conrad testified that Desert Sun was unable to install a hard-wired doorbell because Desert Sun did not believe that it could obtain approval from Complainant’s condominium association to do so.[8] 15. Mr. Conrad acknowledged that Desert Sun’s laborers did a “very poor job” on the initial drywall work in Complainant’s residence. Mr. Conrad stated that Desert Sun properly corrected its initial poor drywall work on Complainant’s ceilings and that the remaining problems with the ceilings are due to the pre-existing framing in Complainant’s residence.[9] 16. Mr. Conrad denied any responsibility for the damaged appliances in Complainant’s residence. Mr. Conrad testified that Desert Sun was not paid to install the appliances, that it only did so as a courtesy to Complainant, and that he only signed for receipt of the appliances as a favor to Complainant. Mr. Conrad acknowledged that he accepted delivery of the new appliances.[10] 17. Mr. Conrad denied any responsibility for the damage to Complainant’s breakfront. Mr. Conrad acknowledged that Desert Sun performed construction work around the breakfront. Mr. Conrad asserted that the breakfront was not damaged by Desert Sun.[11] 18. Complainant testified that Desert Sun did not even attempt to obtain authorization from his condominium association to install the specified hard-wired doorbell. Complainant stated that Desert Sun’s construction work on his ceilings failed to meet workmanship standards.[12] Complainant’s testimony is found to be credible. 19. Complainant testified Desert Sun damaged the new appliances when it installed them. Complainant stated that Desert Sun failed to properly cover the breakfront that was in “superb” condition before Desert Sun damaged it.[13] 20. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, Desert Sun should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing Desert Sun to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Desert Sun cause a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order. 21. Administrative notice is taken of Desert Sun’s prior license record as reflected on the Registrar of Contractors’ public website on July 10, 2012. Such prior license record reflects that License No. C-61.240872-R of Desert Sun is current. 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. Credible testimony and evidence establish that Desert Sun failed to comply with applicable industry standards in its construction work on the items that the Corrective Work Order required it to correct. Credible testimony and evidence also established that Desert Sun damaged Complainant’s new refrigerator and new washing machine when Desert Sun installed the new appliances. Credible testimony and evidence also established that Desert Sun damaged Complainant’s breakfront during its construction work in Complainant’s residence. This tribunal concludes that Desert Sun violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. Credible testimony and evidence established that Desert Sun failed to display its license number on its contract with Complainant and that Desert Sun knowingly contracted beyond the scope of its Class C-61 License. This tribunal concludes that Desert Sun violated the charged provisions of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B) (the license number appearing on any licenses held by the licensee preceded by the acronym "ROC" shall be placed on all written bids submitted by the licensee, letterheads, and all other documents used in the conduct of business regulated by this chapter) and A.R.S. § 32-1154(A)(17) (knowingly contracting beyond the scope of the license of the licensee). 5. Credible testimony and evidence established that Respondent failed to fully comply with the terms of the Corrective Work Order. This tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32- 1154(A)(23) (failure to take appropriate corrective action to comply with the Registrar’s written directive). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, License No: C-61.240872-R of Desert Sun Customs and Restoration LLC shall be suspended until the Registrar of Contractors receives and accepts written proof that Desert Sun has fully complied with the terms of the Corrective Work Order by causing a properly licensed contractor of Complainant’s choice, at Respondent’s sole expense, to fully comply with the terms of the Corrective Work Order and has provided the Registrar of Contractors with acceptable written proof that Desert Sun has brought its contracts and business forms into compliance with the provisions of A.R.S. § 32-1124(B). It is further recommended that if on or before the effective date of this Order, Desert Sun, utilizing a properly licensed contractor of Complainant’s choice, at Desert Sun’s sole expense, to fully accomplish the above described corrective action and provides the Registrar of Contractors with acceptable proof that Desert Sun has brought its contracts and business forms into full compliance with A.R.S. § 32-1124(B) , the above provided License suspension shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Desert Sun pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Desert Sun 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 Desert Sun’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Desert Sun, as defined in A.R.S. §32-1101(A)(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, July 12, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 6/27/12 Hearing Record (hereinafter “H.R.”) at 21:12-22:05. [2] H.R. at 22:32-23:13. [3] H.R. at 23:30-23:53. [4] See Exhibit 1 (Contract and Work Spreadsheet). [5] See Exhibit 7 (Payments to Contractor). [6] H.R. at 30:55-33:58. [7] See Exhibit 6 (Photographs 6.2-6.31). [8] H.R. at 1:11:18-1:12:08. [9] H.R. at 1:12:09-1:13:11. [10] H.R. at 1:16:48-1:18:19. [11] H.R. at 1:25:30-1:26:42. [12] H.R. at 1:32:50-1:34:37. [13] H.R. at 1:32:50-1:38:35.

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