ALJDEC decisions subject to certification as final

2012A-3941-ROC · Registrar of Contractors · 2013-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2013, at 1:00 p.m. The record was held open until February 13, 2013, to allow parties sufficient time to complete their Settlement Negotiations. APPEARANCES: Brian Tognoni and Nita Gulbas (hereinafter “Complainants”) appeared through Nita Gulbas. J N T Plastering Inc (hereinafter “JNT”) appeared through its Qualifying Party, Kim Ann Tuccino.

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. JNT is the holder of License No. C-36.241194-R issued by the Registrar of Contractors. 2. This is a residential matter where on or about December 8, 2008, Complainants entered into a construction agreement with JNT for the application of exterior stucco on the new custom residence that they were constructing at 33 Mountain Ranch Rd., Elgin, Arizona. The exterior stucco was to be completed by JNT for the total sum of $31,942.00. 3. JNT applied a brown coat on Complainants’ new residence. Complainants then stopped the construction work on their new residence until they were financially able to proceed with the construction project. Complainants had paid JNT over $27,000.00 when the construction project was stopped. 4. Complainants were able to resolve their financial difficulties and contacted JNT to complete the application of the exterior stucco on the new residence. On September 30, 2010, Complainants paid JNT the sum of $3,500.00 for the estimated cost of materials to complete the application of exterior stucco on their new residence. JNT agreed to complete the construction project during the month of June 2011. 5. When JNT failed to comply with Complainants’ repeated requests for JNT to return and complete the exterior stucco application to their residence, Complainants filed a formal Complaint against JNT with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on August 30, 2012, directing JNT to perform designated corrective work on Complainants’ residence. 7. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. Abandonment. Though promising to finish the project approximately in June of 2011 Joe Tuccino has made no effort to complete the job. Joe Tuccino accepted a check for $3500.00 on 9/20/2010 and has not finished the job as promised: Only the scratch coat of the stucco has been applied[;] finish coat needs to be applied.

2. Remove his scaffolding that he left on premise. Joe Tuccino left his scaffolding on the property, then tried to hold us accountable for it. Besides the fact that we are not responsible for what he left behind, the scaffolding remains on our property in its entirety. Kim Tuccino was sent photographs showing it still on site. Our neighbors and our local contractor both note that the scaffolding did not move until we dismantled it to store it: Statement by the complainant.

8. Inspector Nieves testified that no pre-hearing inspection was performed because Complainants had caused the exterior stucco work on their residence to be completed by another contractor. Inspector Nieves stated that he observed that the brown coat had been left on Complainant’s residence for a long time.[1] 9. Brian Hale Tognoni (hereinafter “Mr. Tognoni”) testified that Complainants gave JNT a check for $3,500.00 on September 30, 2010. Mr. Tognoni stated that JNT left its scaffolding equipment at Complainants’ residence. Mr. Tognoni testified that he tried to contact JNT on numerous occasions and never received a call back from JNT.[2] 10. Nita Gulbas (hereinafter “Ms. Gulbas”) testified that Complainants gave JNT a check for $3,500.00 on September 30, 2010, for the estimated cost of materials to complete the installation of the exterior stucco on Complainants’ new residence. Ms. Gulbas stated that JNT left its scaffolding equipment at Complainants’ residence. After nearly two years, Complainants disassembled and stored the scaffolding equipment at their residence. Ms. Gulbas testified that Complainants repeatedly attempted to contact JNT in an effort to get JNT to complete the construction project. Ms. Gulbas stated that Complainants got “zero response” from JNT.[3] 11. Ms. Gulbas testified that JNT failed to respond to the Corrective Work Order. Ms. Gulbas stated that she contacted the Legal Department of the Registrar of Contractors and was advised that Complainants could retain an alternative contractor to complete the construction project. Ms. Gulbas stated that Complainants first obtained bids to complete the construction project from at least three licensed contractors. Complainants then retained an alternative licensed contractor to complete the installation of their exterior stucco.[4] The alternative licensed contractor started the application of the final exterior stucco coat on November 23, 2012, and completed the exterior stucco application on November 30, 2012. Ms. Gulbas testified that Complainants paid the alternative licensed contractor $10,200.00 to complete the construction project. Ms. Gulbas stated that portions of the brown coat applied by JNT were too thin and that the alternative contractor had to perform extra work on the brown coat. Ms. Gulbas testified that JNT’s scaffolding equipment is still stored at Complainants’ residence.[5] 12. Ms. Gulbas testified that Complainants entered into a contract with JNT on November 17, 2008. Ms. Gulbas stated that she believed that JNT completed the brown coat on Complainants’ residence during December 2008, or January 2009. Ms. Gulbas acknowledged that Complainants stopped work on their new residence until 2010, because Complainants “ran out” of money. Ms. Gulbas testified that Complainants were ready to complete the construction project when Complainants paid JNT $3,500.00 on September 30, 2010.[6] 13. Ms. Gulbas’ testimony is found to be credible. 14. Kim Ann Tuccino (hereinafter “Ms. Tuccino”) testified that JNT never abandoned the construction project. Ms. Tuccino stated that JNT completed the brown coat on Complainants’ residence in December 2008. Ms. Tuccino testified that normally exterior stucco applications are completed within three months after the completion of the brown coat. Ms. Tuccino stated that due to the approximately two-year delay, the parties’ original contract was voided. Ms. Tuccino testified that Complainants agreed that there would be a cost increase because the exterior stucco application had been left unfinished for two years. Ms. Tuccino stated that Ms. Gulbas gave her the $3,500.00 check for materials. Ms. Tuccino testified that JNT had not been paid in full for its construction work at Complainants’ residence.[7] 15. Ms. Tuccino testified that it would have cost between $10,000.00 and $14,000.00 to finish the stucco application on Complainants’ residence. Ms. Tuccino stated that JNT did not contact Complainants in response to the Corrective Work Order because she had repeated health issues and because JNT has a real problem with mail delivery. Ms. Tuccino testified that if she had seen the Corrective Work Order, JNT would have complied with its terms. Ms. Tuccino acknowledged that JNT accepted a $3,500.00 check from Complainants on September 30, 2010. Ms. Tuccino stated that JNT had every intention of completing the construction project when it accepted the $3,500.00 check from Complainants.[8] 16. Ms. Tuccino’s friend, Sheila Collins (hereinafter “Ms. Collins”), testified that she is the vice-president for a general contractor. [9] Ms. Collins stated that she had used JNT on six to eight construction projects. Ms. Collins testified that she had never had a problem with JNT and that JNT performed a perfect job on each of her construction projects. Ms. Collins testified that the problems with Complainants’ construction project were caused by Complainants stopping work on their residence for a two-year period of time. Ms. Collins stated that she did not consider JNT’s failure to complete the construction project to be abandonment because of the two-year delay imposed by Complainants. Ms. Collins acknowledged that she had never seen Complainants’ residence. Ms. Collins testified that all exterior stucco is applied in the same way.[10] 17. Ms. Tuccino stated that the $3,500.00 that JNT charged Complainants in 2010, was to start the completion of the construction project, not to re- start the parties’ original contract. Ms. Tuccino stated that JNT had left the scaffolding at Complainants’ residence because the construction project had not been completed.[11] 18. Administrative notice is taken of JNT’s prior license record as reflected on the Registrar of Contractors’ public website on February 21, 2013. Such prior license record reflects that License No. C-36.241194-R of JNT was suspended on January 1, 2013 for non-renewal. License No. C- 36.241194-R of JNT had previously been suspended by the Registrar of Contractors for non-renewal from January 1, 2011, through March 16, 2011. 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. JNT accepted a $3,500.00 check from Complainants on September 30, 2010, to purchase materials to complete the application of the exterior stucco on Complainants’ residence. JNT did not complete the construction project, leaving Complainants with an unfinished exterior stucco application, despite the fact that Complainants had paid JNT a total of over $30,000 to perform the exterior stucco application. JNT failed to respond to Complainants’ repeated attempts to contact JNT. This Tribunal concludes that JNT abandoned the construction project in violation of the charged provision of A.R.S. § 32-1154(A)(1).[12] 4. JNT failed to complete the construction project at Complainants’ residence, despite repeated opportunities to do so. Portions of the exterior stucco brown coat applied by JNT had to be corrected by an alternative contractor in order to complete the construction project. This Tribunal concludes that JNT violated the charged provision of A.R.S. § 32-1154(A)(3),[13] namely, A.A.C. R4-9-108.[14] 5. JNT’s written proposal did not contain JNT’s contractor’s license number preceded by the acronym “ROC.” This Tribunal concludes that JNT violated the charged provision of A.R.S. § 32-1154(A)(13),[15] namely A.R.S. § 32- 1124(B).[16] 6. JNT failed to comply with the terms of a Corrective Work Order. This Tribunal concludes that JNT violated the charged provision of A.R.S. § 32- 1154(A)(23).[17] RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 36.241194-R of JNT shall be revoked on the effective date of the Registrar’s Order. It is further recommended, in addition to the above-provided penalties, if any, that JNT 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 JNT 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 JNT’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with JNT, 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 26, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/7/13 Hearing Record (hereinafter “H.R.”) at 16:32-21:00. [2] H.R. at 21:28-24:41. [3] H.R. at 21:28-33:03. [4] Complainants hired Adobe Lath & Stucco, LLC, License No. C-36.216199-R, to complete JNT’s work. [5] H.R. at 33:04-50:21. [6] H.R. at 50:22-59:48. [7] H.R. at 1:00:05-1:05:41. [8] H.R. at 1:05-42-1:19:13. [9] This Tribunal could not locate a license number for the name Sheila Collins on the Registrar of Contractors public website on February 21, 2013. [10] H.R. at 1:21:00-1:31:00. [11].H.R. at 1:31:53-1:35:45. [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)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [14] 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.

[15] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [16] 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.

[17] 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.

-----------------------

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