ALJDEC decisions subject to certification as final

2012A-3097-ROC · Registrar of Contractors · 2013-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2013, at 8:00 a.m. APPEARANCES: Toni Ybarra (hereinafter “Complainant”) appeared on her own behalf. T B J Construction LLC (hereinafter “TBJ”) appeared through its attorney, Drue A. Morgan-Birch, Esq., Law Office of Drue A. Morgan- Birch, PC 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 TBJ is the holder of License No. B-3.235223-R issued by the Registrar of Contractors. This is a residential matter where TBJ performed remodeling work on Complainant’s residence. Complainant was dissatisfied with TBJ’s workmanship and filed a formal Complaint against TBJ with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. TBJ was not present for the onsite inspection. Inspector Nieves acknowledged that he informed TBJ that it was not required to attend the jobsite inspection. Inspector Nieves issued a written Corrective Work Order on July 24, 2012, directing TBJ to perform designated corrective work on Complainant’s residence. The Corrective Work Order provided, in pertinent part, as follows: 1a. Ceramic tile to be placed in entire home is poor workmanship, and needs to be replaced. Tiles are not level and some tiles are higher than others: Numerous tiles have excessive lippage. 1b. Tiles sound hollow when tapped: Numerous tiles sound hollow. 2. In the Great room, Mr. Jeffrey did not countersink the two electrical outlets as he promised and [assured] that he would do and [was] done before and I would be satisfied with his workmanship: Outlets are set [too] high. 3. Bathroom remodeling is incomplete: Needs to be completed 4. Walk-in tub is not installed as to what requested, appears to be unleveled and contractor has ruined it by installing around an inch and a half on each end into the wrong area or wall of his choice (I had picked a different wall and Contractor measured and assured me he’d install it to my request and didn’t.), in which now the front panel and side panel cannot be placed. Contractor explained that he wanted to cut panel, which I do not agree with, that is not the proper installation: Tub is set facing west should be placed facing south. 5. Bathroom window is not correct, and does not open properly, looks crooked, and installation is poor workmanship: Needs to be properly corrected. 6. Walk-in shower fixtures are off-centered and not as I requested as to be like all standard homes built. Contractor never stated he would set them off centered. It is poor workmanship: Faucets are set [too] far to the left. 7. Tile workmanship of walk-in shower is not level and very poor: Numerous wall tiles are not set flat. 8. Lights were removed and not restored. Bathroom has no lights now: Lights need to be installed. 9. Fan was removed, and no exhaust fan was installed as agreed. Bathroom is without exhaust fan: Fan needs to be installed. 10a. I purchased toilet at Lowes, to speed up the process of the remodeling in my bathroom out of pocket: H/o paid extra $225.[00] for toilet, wants reimbursement. 10b. Toilet is installed, however unstable and moves: Toilet is not set correctly and moves. 11. Electrical outlets in bathroom are not placed as requested or covered and are incomplete: Needs to be corrected. 12. Flooring tile in bathroom is incomplete: Tile needs to be completed. 13. Vanity and sink for bathroom was never installed as agreed: 14. Beams in bathroom were dirtied with grout and plaster, damaging the finish: Needs to be properly corrected. 15. Kitchen remodeling is incomplete: Needs to be complete. 16. Floor tiling in kitchen incomplete as agreed to in contract: Needs to be completed. 17. Cabinets are not installed in kitchen, as agreed to in contract: Cabinets need to be installed. 18. Exhaust fan is not installed in kitchen, as agreed to in contract: Fan needs to be installed. 19. Electrical outlets are not covered and are incomplete in kitchen: Needs to be completed. 20. Mr. Jeffrey and TBJ refuses to give me receipts for insulation that I requested, because when I would check on my home periodically, I noticed old insulation remnants, possibly used, that he claimed he used in my walls for my home: Need to provide receipts. 21. Mr. Jeffrey and TBJ refuses to give me names of the subcontracted electricians and their services that Mr. Jeffrey claims that were done in my home: Provide list of sub- contractors. 22. I have requested from Mr. Jeffrey and TBJ receipts and services performed in my home and to this date have not received any proof for these services: Provide receipts. 23. On a verbal contract, a eucalyptus tree was requested for removal and the agreement was for me to buy Mr. Jeffrey a Stihi chainsaw for the service of removing the tree to the ground. Mr. Jeffrey did remove the tree and the tree fell on and damaged my east side fence. I asked Mr. Jeffrey to fix the fence is all, and he never did. Mr. Jeffrey also left a huge stump, when the agreement was to have a leveled ground: I could not determine if this was caused by the contractor[‘s] actions. 24. Mr. Jeffrey and TBJ damaged the decorative stepping stones and a large decorative rock, and the red tiles in the patio with cement water: Needs to be properly corrected. 25. Mr. Jeffrey was paid $10,000.00 per agreement on July 15, 2011, so he could pay for the tile and cabinets and start doing the job on August 1, 2011. On August 4, 2011, Mr. Jeffrey called and requested an additional $5,000.00, which I paid him. Mr. Jeffrey had not even started the project at that time. See attachment (Attachment B): Need to complete contract. 26. I have tried to the best of my abilities to come to an agreement with Mr. Jeffrey and TBJ, see attachment (Attachment C). I am now requesting the help of the Arizona Registrar of contractors: Need to complete contract. Inspector Nieves testified that he had not conducted a pre-hearing inspection because TBJ’s attorney informed him that no corrective work had been performed. Inspector Nieves stated that he confirmed that no corrective work had been performed with Complainant. Inspector Nieves testified that portions of the tile work that TBJ performed in Complainant’s residence did not comply with applicable workmanship standards. Inspector Nieves stated that he observed approximately twenty (20) tiles that displayed unacceptable lippage. Inspector Nieves stated that he also observed that approximately ten percent (10%) of the floor tiles were hollow-sounding. Inspector Nieves acknowledged that the tile floor was not complete and that the correction of the floor tiles with excessive lippage and the hollow-sounding tiles was a “punch list” type of correction. Inspector Nieves testified that Item 10A of the Corrective Work Order (“I purchased toilet at Lowes, to speed up the process of the remodeling in my bathroom out of pocket: H/o paid extra $225.oo for toilet, wants reimbursement”) should have been listed as no action required by TBJ. Inspector Nieves testified that he included the relocation of the spa-type bathtub as part of the Corrective Work Order because Complainant informed him that it had been installed in the wrong location. Inspector Nieves stated that even if the location was acceptable, TBJ had failed to install the spa-type bathtub in a location where the bathtub’s access panel could be installed. Inspector Nieves testified that an access panel for the spa- type bathtub was required. Inspector Nieves testified that the shower handles were installed in an offset manner. Inspector Nieves stated that shower handles are normally installed in a central location in the shower unless a different location was specified on applicable plans and specifications. Inspector Nieves testified that Complainant agreed to allow TBJ access to her residence to perform corrective work. Inspector Nieves stated that TBJ informed him that it was unable to gain access to Complainant’s residence to comply with the terms of the Corrective Work Order. Inspector Nieves’ testimony is found to be credible. Complainant testified that she was unhappy with TBJ’s workmanship and asserted that she had received nothing for the money that she had paid TBJ. Complainant denied that she had informed TBJ that she would soon be confined to a wheelchair. Complainant denied asking that her bathroom be constructed in accordance with ADA specifications.[1] Complainant stated that she wanted the spa-type bathtub moved to the center of the bathroom. Complainant testified that she could not use the spa-type bathtub because the access panel for the spa-type bathtub could not be installed. Complainant testified that she had never denied access to TBJ. Complainant then acknowledged that she received a written request from TBJ’s attorney for access to her residence so that TBJ could perform corrective work at her residence.[2] Complainant stated that she did not realize that she was expected to reply to TBJ’s written request for access. Complainant acknowledged that the gate to the fence around her residence was locked. Complainant testified that her daughter had given a key to the lock to a man who was performing construction work at her residence. Complainant acknowledged that she was not present when the key was allegedly delivered and that she did not know if the man was an employee of TBJ. Complainant stated that she believed that the man was a TBJ employee because her daughter said he was working in Complainant’s residence. Complainant’s failure to respond to TBJ’s written request for access to her residence is found to constitute a denial of access to TBJ. Complainant’s denial of access is found to be unreasonable. Complainant testified that at least one of her two daughters was present during most of the construction process. Complainant testified that she took a photograph of the installation of the spa-type bathtub in its present location on October 16, 2012. Complainant acknowledged that she did not inform TBJ of her dissatisfaction with the location of the spa-type bathtub until TBJ had completed the installation in November 2012. TBJ’s Qualifying Party, Tyler Bonom Jeffrey (hereinafter “Mr. Jeffrey”), testified that TBJ installed the spa-type bathtub in Complainant’s bathroom to comply with ADA specifications. Mr. Jeffrey acknowledged that Complainant did not specifically request that the shower handles and the spa-type bathtub be installed in accordance with ADA specifications. Mr. Jeffrey testified that Complainant stated that she would be in a wheelchair soon so he installed the spa-type bathtub and the showers handles in accordance with ADA specifications. Mr. Jeffrey stated that the remaining items of the Corrective Work Order were punch list type items that would normally be corrected when the construction project was completed. Mr. Jeffrey testified that if Complainant had informed TBJ that she was dissatisfied with the location of the spa-type bathtub on October 16, 2012, the relocation of the spa-type bathtub would have been relatively easy. Mr. Jeffrey stated that Complainant failed to inform TBJ that she was dissatisfied with the location of the spa-type bathtub until TBJ had nearly completed installing it. Mr. Jeffery testified that TBJ had not completed Complainant’s construction project because TBJ had been unable to gain access to Complainant’s residence. Mr. Jeffrey denied that Complainant had given a key to her residence to one of TBJ’s employees. Mr. Jeffrey stated that TBJ had been unable to comply with the terms of the Corrective Work Order because TBJ had been unable to obtain access to Complainant’s residence. Administrative notice is taken of TBJ’s prior license record as reflected on the Registrar of Contractors’ public website on April 15, 2013. Such prior license record reflects that License No. B-3.235223-R of TBJ is current. License No. B-3.235223-R of TBJ was suspended from November 13, 2010, through December 8, 2010, for lack of bond. 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. Complainant acknowledged that she received a written request from TBJ’s attorney for access to her residence so that TBJ could perform corrective work at her residence. Complainant acknowledged that she failed to respond to TBJ’s request for access. There was no credible evidence that TBJ abandoned or refused to perform Complainant’s construction project. This Tribunal concludes that Complainant failed to meet her burden of proving that TBJ violated the charged provision of A.R.S. § 32- 1154(A)(1).[3] 4. The tile work in Complainant’s residence displays unacceptable lippage and has several floor tiles that are hollow-sounding. The spa-type bathtub was installed in such a manner as to not allow the access panel for the spa-type bathtub to be installed. The bathroom window is crooked and inoperable. The shower handles for the shower were installed in an offset manner rather than centered in the shower. This Tribunal concludes that TBJ violated the charged provisions of A.R.S. § 32- 1154(A)(2)[4] and A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[5] 5. TBJ failed to list its contractor’s license number preceded by the acronym “ROC” on the parties’ construction agreement. This Tribunal concludes that TBJ violated the charged provision of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B).[6] 6. TBJ was unable to comply with the terms of the Corrective Work Order due to Complainant’s unreasonable denial of access. Because construction work is not a perfect art, generally contractors must be allowed to correct their work before their licenses are disciplined as a result of poor workmanship. This Tribunal concludes that Complainant failed to meet her burden of proving that TBJ violated the charged provision of A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, that License No. B-3.235223-R of TBJ shall be suspended until the Registrar of Contractors receives and accepts written proof of the following: • TBJ has fully complied with the terms of the written Corrective Work Order issued in this matter, with the exception of Item No.10a (Complainant’s request for reimbursement for toilet that Inspector Nieves acknowledged should have been listed as no action required by TBJ); or • TBJ was denied reasonable access to Complainant’s residence to perform the corrective action necessary to comply with the terms of the written Corrective Work Order; and • TBJ has brought all of its written contracts and communications to within full 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, TBJ has provided acceptable written proof that it has fully accomplished the above-described corrective action, or was denied reasonable access to Complainant’s residence to do so, and that it has brought all its written communications and forms to within full compliance with the provisions of A.R.S. § 32-1124(B), then the above- provided License suspension shall not take place and 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, April 19, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Americans with Disabilities Act (ADA). [2] See Exhibit No. R-5 (August 5, 2012 Letter). [3] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [4] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [5] 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.

[6] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[7] 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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