ALJDEC decisions subject to certification as final

2012A-5059-ROC · Registrar of Contractors · 2013-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2013 APPEARANCES: Complainant Marie Gentilo appeared on her own behalf. Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 61.228506-R to No Limit Remodeling and Repair Inc. dba Cadence Design and Interiors (“Respondent”). On October 15, 2012, the Registrar received a Complaint against Respondent from Marie Gentilo (“Complainant”) regarding a bathroom remodel completed by Respondent at 9242 West Gold Dust Avenue, Peoria, Arizona, that had numerous workmanship issues. After the Registrar assigned the Complaint to its inspector, Steve Klein, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on November 9, 2012, included the following: a) Missing grout in between tiles on shower walls and floor: Several areas throughout the shower have voids in the grout. Respondent shall correct by the appropriate means. b) Tiles are not plumb with each other: It’s the inspector’s opinion that crooked, improperly cut or unevenly set tiles shall be corrected by the appropriate means. c) Shower seat not smooth to sit on: It’s the inspector’s opinion that cooked, improperly cut or unevenly set tiles shall be corrected by the appropriate means. d) Commode not installed: Installed by Respondent before the inspection. No action required by the Respondent. e) Edging floor baseboard not finished: At the time of inspection, base board was missing. Respondent to correct by the appropriate means. f) Misrepresentation of qualifications: Respondent has a C-61 Limited Remodeling and Repair Contractor license. Remodeling or repairs and improvements to existing structures or appurtenances. g) Oil stain on drive due to work truck leaking: Respondent agreed that his truck leaked oil on the driveway. Respondent shall correct by the appropriate means. h) Questions about his moving the shower drain if he hit dirt, Could [sic] there be a problem with termites. Complainant unable to demonstrate termite barrier at the time of inspection.

Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3) and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, indicating that it believed it would be able to complete the job to Complainant’s satisfaction within two weeks. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on October 4, 2013, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on October 4, 2013. Complainant testified on her own behalf and submitted one exhibit. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence In August 2012, Complainant entered into a verbal contract with Steven Gutmans, Respondent’s Qualifying Party, to complete a bathroom remodel for a total cost of $2800.00. Respondent was to remove the bathtub and build a walk-in shower with a seat, tile walls, and tile floor. Respondent was also to remove the toilet and install a new toilet. Respondent indicated the project would be completed in two to three weeks. Through the purchase of materials and money paid directly to Mr. Gutmans, Complainant paid a total of $3150.00 Mr. Gutmans installed the new toilet two days prior to the jobsite inspection conducted by Inspector Klein. Complainant testified she tried to ask Mr. Gutmans questions about how the toilet was installed based on advice she had received from a worker at a home improvement store, but Mr. Gutmans refused to address Complainant’s concerns. Complainant testified that since the toilet was installed, it was leaking and smelled because it was not installed properly. Complainant stated brown water would visibly spread across the floor when the toilet was flushed. Inspector Klein testified that at the time of the prehearing inspection, no additional work had been completed by Respondent. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 24, 2013. Such prior License record reflects that Respondent’s License No. C-61.228506-R was current. Such prior License record also reflects that there were two prior complaints that were resolved, settled, or withdrawn against Respondent’s License No. C-61.228506-R. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. § 41-1092.04 and A.R.S. § 41- 1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 4. The undisputed credible testimony established that Respondent did not complete Complainant’s remodeling project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 5. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent No Limit Remodeling and Repair Inc. dba Cadence Design and Interiors’ License No. C-61.228506-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Marie Gentilo’s Complaint in Case No. 2012-5059. In the event of certification of the 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 that certification. Done this day, October 24, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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