ALJDEC decisions subject to certification as final

2012A-3388-ROC · Registrar of Contractors · 2013-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 2013, at 8:00 a.m. APPEARANCES: Ramesh Devaraj (hereinafter “Complainant”) appeared on his own behalf. Simply Home Cinemas LLC (hereinafter “Simply”) appeared through its qualifying party, Anthony John Tangalos, Jr. 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. Simply is the holder of License No. K-11.200305-D[1] issued by the Registrar of Contractors. 2. This is a residential matter where on December 7, 2011, Simply contracted with Complainant to perform remodeling work on Complainant’s residence. Pursuant to the terms of the parties’ construction agreement, Simply agreed to perform construction work on Complainant’s residence, including the performance of structural modifications to Complainant’s residence and the construction of a new stairway, for the total sum of $22,900.00. 3. In the written proposal that Simply prepared and submitted to Complainant,[2] Simply represented that it held license numbers K- 67.196571-D (low voltage communication systems) and C-62.200578-R (minor home improvements), as well as License No. K-11.200305-D. 4. According to the Registrar’s public website, License Nos. K-67.196571-D and C-62.200578-R were issued to Simply Home Cinemas LLC. Simply’s qualifying party, Anthony John Tangalos Jr. (hereinafter “Mr. Tangalos”), is also the qualifying party on License Nos. K-67.196571-D and C- 62.200578-R. 5. License No. K-67.196571-D was voluntarily cancelled on May 27, 2008, and License No. C-62.200578 was voluntarily cancelled on October 2, 2008. 6. Simply assured Complainant that it was properly licensed and fully qualified to perform structural alterations to Complainant’s residence. 7. During the course of construction, Complainant became increasingly dissatisfied with Simply’s construction work and behavior at the construction project. After cutting into Complainant’s foundation, Simply determined that there had been a miscalculation in measurements and that Complainant’s stairway could not be constructed as intended. As a “good will” gesture, Simply gave Complainant an equipment rack for his residence. Simply then removed and rebuilt Complainant’s stairway without a permit. 8. The parties then became embroiled in a dispute regarding the installation of a handrail for Complainant’s stairway. The parties were unable to resolve their dispute but Simply agreed to correct “punch list” items at Complainant’s residence. 9. On July 1, 2012, Simply arrived at Complainant’s residence ostensibly to perform punch list work at Complainant’s residence. Instead of performing the agreed upon punch list work, Simply began to disconnect and dismantle the equipment rack that Simply had previously given to Complainant. Complainant’s wife demanded that Simply stop what it was doing and leave her residence. Mr. Tangalos refused to leave Complainant’s residence. Complainant’s wife then contacted the local police department. After the police arrived, Mr. Tangalos left Complainant’s residence. 10. Complainant then filed a formal Complaint against Simply with the Registrar of Contractors. 11. Complainant was no longer willing to allow Simply into his residence based upon Mr. Tangalos’ behavior at his residence on July 1, 2012, and no onsite inspection was performed. 12. Complainant testified that he asked Mr. Tangalos if he was properly licensed to perform remodeling work on his residence and that Mr. Tangalos represented that he had three valid contractor’s licenses and was properly licensed to perform residential remodeling work at Complainant’s residence. Complainant stated that he would not have allowed Simply to perform construction work at Complainant’s residence if Complainant had known that Simply was not licensed to perform the remodeling work. Complainant testified that the stairway constructed by Simply failed to provide sufficient headroom and tread depth, as required by applicable IRC code. Complainant stated that Simply failed to install electrical outlets as required by applicable electrical code and that Simply failed to install a handrail for the new stairway as required by applicable building code.[3] 13. Complainant testified that Simply abandoned the construction project at Complainant’s residence. Complainant stated that Simply refused to complete the construction project in accordance with the parties’ construction agreement. Complainant stated that he was not willing to allow Mr. Tangalos into his residence based on Mr. Tangelos’ unprofessional behavior in his residence on July 1, 2012. Complainant testified that Simply’s construction work at his residence was unprofessional and that it failed to comply with applicable workmanship standards.[4] 14. Complainant testified that Mr. Tangalos repeatedly assured Complainant that a construction permit was not required for the remodeling work at Complainant’s residence. Complainant testified that he contacted the City of Mesa Building Department (“the City”) and that the City informed him that a construction permit was definitely required and that portions of the construction work completed by Simply would have to be opened up to allow the City to perform its required inspections.[5] 15. Complainant’s testimony is found to be credible. 16. Complainant’s wife, Monica Sud Devaraj (hereinafter “Ms. Devaraj”), testified that she allowed Simply into Complainant’s residence on July 1, 2012, to perform work on some “punch-list” items at her residence. Ms. Devaraj stated that she went downstairs and observed Mr. Tangalos attempting to remove Complainant’s equipment rack from Complainant’s residence. Ms. Devaraj demanded that Mr. Tangalos leave her residence. After Mr. Tangalos refused to leave her residence, Ms. Devaraj contacted the police. Ms. Devaraj testified that Mr. Tangalos did not leave her residence until he was required to leave by the police.[6] 17. Mr. Tangalos testified that Complainant was very demanding and repeatedly demanded that Simply perform extra construction work for free. Mr. Tangalos stated that he had been a contractor for 27 years and had never had a single complaint filed against his contractor’s license. Mr. Tangalos acknowledged his minor home remodeling license was not active when he entered into the construction agreement with Complainant. Mr. Tangalos acknowledged that he had voluntarily canceled both the K- 67.196571-D (low voltage communication systems) and the C-62.200578-R (minor home remodeling) because of the economy. Mr. Tangalos testified that he had experienced numerous personal and financial difficulties and canceled the K-67.196571-D and the C-62.200578-R licenses for economic reasons.[7] 18. Mr. Tangalos testified that the gift of the equipment rack to Complainant was a conditional gift. Mr. Tangalos stated that Complainant violated the conditions placed on the gift of the equipment rack by continuing to ask for additional work beyond the scope of the parties’ construction agreement.[8] 19. Mr. Tangalos acknowledged that he knowingly contracted beyond the scope of Simply’s License No. K-11.200305-D.[9] 20. Mr. Tangalos acknowledged that Simply’s paperwork stated that Simply possessed a K-67.196571-D license and a C-62.200578-R license issued by the Registrar of Contractors. Mr. Tangalos testified that it was an “oversight.”[10] 21. Mr. Tangalos testified that the construction work performed by Simply complied with applicable workmanship and industry standards. Mr. Tangalos stated that Simply’s construction work would comply with applicable code requirements once the construction work was completed. Mr. Tangalos stated that Simply did not abandon the construction project or refuse to perform. Mr. Tangalos testified that work had stopped because the parties were at an impasse.[11] 22. Administrative notice is taken of Simply’s prior license record as reflected on the Registrar of Contractors’ public website on January 28, 2013. Such prior license record reflects that License No. K-11.200305-D of Simply was suspended by the Registrar of Contractors on October 6, 2012, 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. Simply refused to complete the construction project in accordance with the parties’ construction agreement. This Tribunal concludes that Simply violated the charged provision of A.R.S. § 32-1154(A)(1).[12] 4. Simply failed to obtain a required construction permit from the local building authority and failed to perform its work in compliance with applicable code requirements and workmanship standards. This Tribunal concludes that Simply violated the charged provisions of A.R.S. § 32- 1154(A)(2)[13] and A.R.S. § 32-1154(3),[14] namely, A.A.C. R4-9-108.[15] 5. Simply knowingly and falsely represented to Complainant that Simply had a valid K-67.196571-D license and a valid C-62.200578-R license and that Simply was properly licensed to perform major construction work, including structural alterations, at Complainant’s residence. This Tribunal concludes that Simply violated the charged provision of A.R.S. § 32-1154(A)(16).[16] 6. Simply knowingly contracted to perform work beyond the scope of Simply’s No. K-11.200305-D License. This Tribunal concludes that Simply violated the charged provision of A.R.S. § 32-1154(A)(17).[17] RECOMMENDed order In view of the foregoing, it is recommended that License No. K- 11.200305-D of Simply shall be revoked on the effective date of this Order. 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 4, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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[1] A.A.C. R4-9-103 provides, in pertinent part, as follows:

K-11 ELECTRICAL

This classification allows the scope of work permitted by the commercial L-11 Electrical and residential C-11 Electrical licenses.

[2] See Exhibit No. A1 (Real Home Cinema Proposal). [3] 1/15/13 Hearing Record (hereinafter “H.R.”) at 24:35-1:35:13. [4] H.R. at 1:35:14-1:50:17. [5] H.R. at 1:24:51-2:16:59. [6] H.R. at 2:17:00-2:25:00. [7] H.R. at 2:25:25-2:34:22. [8] H.R. at 2:34:23-2:56:13. [9] H.R. at 2:56:14-2:57:30. [10] H.R. at 2:57:31-2:58:19. [11] H.R. at 2:58:20-3:12:30. [12] 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. [13] 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. [14] 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. [15] 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.

[16] A.R.S. § 32-1154(A)(16) includes among the grounds for disciplinary action against a contractor’s license, false, misleading or deceptive advertising whereby any member of the public may be misled and injured. [17] A.R.S. § 32-1154(A)(17) includes among the grounds for disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee.

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