ALJDEC decisions subject to certification as final

2012A-1069-ROC · Registrar of Contractors · 2013-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2013, at 8:15 a.m. APPEARANCES: Steve and Kelle Quitno (hereinafter “Complainants”) appeared through their authorized representative, Kelle Quitno. R and J Handyman Services LLC (hereinafter “R and J”) appeared through its qualifying party, Richard Gordon Blum. 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. R and J is the holder of License No. B-3.228224-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainants’ residence was damaged by heavy snows. R and J repaired the snow damage to Complainants’ residence. 3. Complainants were dissatisfied with R and J’s workmanship and filed a formal Complaint against R and J with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Rick J. Emry (hereinafter “Inspector Emry”), conducted an onsite inspection. Inspector Emry issued a written Corrective Work Order on March 19, 2012, directing R and J to perform designated corrective work on Complainants’ residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Item #1 Both bathrooms and all kitchen counters chipped/indented.

Three chips in the Formica kitchen counter top edging, in addition to approximately a 1” semi-circle indentation on the work counter behind the kitchen sink were noted. One missing piece of Formica edge from the right corner of the common bath counter top approximately 3/4” long, and one section of missing Formica approximately 4” long from the front nosing of the master bathroom were observed. Cabinets and counter tops are original to the house. Unable to determine cause at time of inspection.

No action required by the Respondent.

Item #2 Scratches on master bath cabinets & Kitchen cabinets.

The laminated wood grain vanity face frame had two areas of missing grain pattern consistent with tape removal. A small patch of laminated wood grain was missing from the front left corner of the Linen closet: this is also consistent with tape removal.

Respondent shall correct by appropriate means.

Item #3 New Paint scratches on outside of house (north east side).

On the northeast exterior corner of the house a semicircular black abrasion approximately 1/2” in width approximately 18” in diameter was noted. Unable to determine cause at time of inspection.

No action required by the Respondent.

Item #4 Deck has “Material” (drywall) film/needs power wash/Steps replaced (chipped).

A light white film was noticeable atop the wood framed front deck. There were two steps which had chips missing from the front leading edges of the steps. Unable to determine cause at time of inspection.

No action required by the Respondent.

Item #5 House needs non-winterization done.

Corrected by others prior to job site inspection.

No action required by the Respondent.

Item #6 Property outside debris/needs cleanup.

Small amounts of cellulose insulation were present and mixed in with both snow and cinders mainly to the north and east sides of the house. Also present were strip nails, plywood clips, a bent truss plate, small pieces of practical board and two wrappers from bundles of shingles.

Respondent shall correct by appropriate means.

Item #7 Wall paper torn in master bath over door & “red marks” are stained onto wallpaper (measure marks).

Three red crayon marks were visible at top of north wall at ceiling approximately 2” to 4” in length consistent with truss layout marks.

Respondent shall correct by appropriate means.

The triangular patch of wall paper does not match existing due to existing wallpaper being stained and faded.

No action required by the Respondent.

Item #8 Wood stove pipe pieces do not fit correctly after stove was replaced.

Corrected by others prior to job site inspection.

No action required by the Respondent.

Item #9 Carpet cleaning refund was not paid for living room, dining room & hallway.

Not a workmanship issue.

No action required by the Respondent.

Item #10 Master bathroom floor linoleum torn in center of floor.

A small tear/crack in the laminate flooring approximately 1 1/2” in length and less than 1/16” wide was observed. Unable to determine cause at time of inspection.

No action required by the Respondent.

6. Inspector Emry testified that he performed a pre-hearing inspection on November 19, 2012. Inspector Emry stated that he observed that no corrective work had been performed by Respondent.[1] 7. Inspector Emry’s testimony is found to be credible. 8. Steve Craig Quitno (hereinafter “Mr. Quitno”) testified that R and J was selected by Complainants’ insurance company to repair the snow damage to Complainants’ residence. Mr. Quitno stated that Richard Gordon Blum (hereinafter “Mr. Blum”) was rarely present at the jobsite. Mr. Quitno testified that R and J damaged Complainants’ residence during the repair of the snow damage. Mr. Quitno stated that “overall” R and J did a really good job. Mr. Quitno testified that there was a tiny chip in the kitchen countertop prior to R and J’s work at Complainants’ residence. Mr. Quitno stated that R and J caused all of the other damage to Complainants’ countertops. Mr. Quitno testified that R and J leaned plywood against Complainants’ residence and damaged the exterior paint on the residence. Mr. Quitno stated that R and J damaged the wallpaper in the master bath. Mr. Quitno testified that R and J placed the stove pipe in the wrong location. Mr. Quitno testified that R and J damaged the flooring in the master bathroom. Mr. Quitno stated that R and J was not responsive to his complaints.[2] 9. Kelle Quitno (hereinafter “Ms. Quitno”) testified she was happy with most of R and J’s work. Ms. Quitno stated that R and J damaged the interior of her residence during its construction work at her residence. Ms. Quitno stated that R and J damaged every countertop in her residence. Ms. Quitno testified that R and J damaged the exterior paint on Complainants’ residence, damaged a step in the entryway to the residence, damaged the wall paper in Complainants’ master bathroom, damaged Complainants’ stove pipe, and damaged the flooring in Complainants’ master bathroom.[3] 10. Ms. Quitno testified that Mr. Quitno installed new laminate flooring in Complainants’ residence before R and J installed the stove pipe in Complainants’ residence. Ms. Quitno stated that her countertops were not damaged before R and J performed construction work at her residence.[4] 11. Bobby D. Williams (hereinafter “Mr. Williams”) testified that he worked for Complainants’ insurance company. Mr. Williams stated that he informed Complainants that they could use any contractor that they wanted to perform the repairs on Complainants’ residence. Mr. Williams testified that he inspected Complainants’ residence prior to any work being performed. Mr. Williams stated that Complainants’ residence was just an average home for its age. Mr. Williams stated that he took photographs that show there was one chip in Complainants’ kitchen countertop before R and J performed any construction work at Complainants’ residence.[5] 12. Mr. Blum testified that during the course of repairs, Ms. Quitno kept insisting that the construction project was a remodel rather than a repair project. Mr. Blum stated that Ms. Quitno repeatedly demanded extra work and threatened to file a complaint against R and J. Mr. Blum stated that he did not dispute the items that the Corrective Work Order required R and J to repair. Mr. Blum testified that he did not want to perform corrective work in Complainants’ residence and offered Complainants a financial settlement rather than performing any corrective work on their residence. Mr. Blum stated that Complainants’ countertops were damaged before R and J performed any construction work on Complainants’ residence. Mr. Blum testified that Mr. Quitno installed new laminate flooring in Complainants’ residence and removed and reinstalled Complainants’ wood stove after it was installed by R and J.[6] 13. Tracy Scott Karlson (hereinafter “Mr. Karlson”)[7] testified that he contracted with R and J to winterize Complainants’ residence before R and J performed any work at Complainants’ residence. Mr. Karlson stated that he observed damage to Complainants’ kitchen countertops while he was working at Complainants’ residence. Mr. Karlson acknowledged that he had not returned to Complainants’ residence after R and J completed its construction work.[8] 14. R and J’s employee, Oscar Ortiz testified that he observed preexisting damage in Complainants’ residence while he was working in Complainants’ residence.[9] 15. Administrative notice is taken of R and J’s prior license record as reflected on the Registrar of Contractors’ public website on February 12, 2013. Such prior license record reflects that License No. B-3.228224-R of R and J 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. Complainants failed to meet their burden of proof to establish that R and J damaged their countertops, scratched their new exterior paint, damaged their master bathroom floor linoleum, damaged the steps on their deck, or damaged their wood stove pipe. Complainants also failed to establish that R and J was responsible for paying Complainants money for carpet cleaning that was not required because Complainants replaced portions of the carpet with laminate flooring. 4. There was no dispute that the areas of the laminated wood grain vanity face frame and the front left corner of the linen closet have areas of missing grain pattern caused by tape removal. There was no dispute that the Complainants’ yard requires proper clean-up of all construction debris, including strip nails, plywood clips, pieces of practical board, wrappers, and a bent truss plate. There was no dispute that there are truss layout marks visible in Complainants’ residence. This Tribunal concludes that R and J violated the charged provision of A.R.S. § 32- 1154(A)(3),[10] namely, A.A.C. R4-9-108.[11] 5. A written Corrective Work Order was issued directing R and J to perform designated corrective work on Complainants’ residence. There was no dispute that no corrective work was performed on Complainants’ residence. There was no credible evidence of any denial of access by Complainants. Although a contractor may offer a property owner a financial settlement in lieu of performing corrective work, if the property owner does not accept the settlement, the contractor is not excused from complying with the Corrective Work Order. This Tribunal concludes that R and J violated the charged provision of A.R.S. § 32-1154(A)(23).[12] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. B-3.228224-R of R and J shall be suspended until the Registrar of Contractors receives and accepts written proof that R and J has fully complied with the terms of the written Corrective Work Order. It is further recommended that if on or before the effective date of this Order, R and J fully accomplishes the above-described corrective action, then 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 R and J pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by R and J 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 R and J’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with R and J, 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, February 13, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 1/28/13 Hearing Record (hereinafter “H.R.”) at 16:08-18:04. [2] H.R. at 18:29-40:38. [3] H.R. at 44:29-54:41. [4] H.R. at 54:42-59:37. [5] H.R. at 1:00:27-1:05:45. [6] H.R. at 1:06:10-1:16:41. [7] Administrative notice is taken of the prior license record of Tracy and Sons Plumbing Inc as reflected on the Registrar of Contractors’ public website on February 12, 2013. Such prior license record reflects that License No. C-37.234845-R of Tracy and Sons Plumbing Inc is current. [8] H.R. at 1:17:37-1:19:15. [9] H.R. at 1:19:30-1:20:18. [10] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [11] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[12] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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