ALJDEC decisions subject to certification as final

2012A-5173-ROC · Registrar of Contractors · 2013-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 24, 2013 APPEARANCES: Complainants Gary E. Liles Sr. and Luanne Liles appeared on their own behalf. Respondent Vito Frederick Austin doing business as Vito’s Construction appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.229267-D to Vito Frederick Austin doing business as Vito’s Construction (“Respondent”). The Registrar received a Complaint against Respondent from Gary E. Liles Sr. and Luanne Liles (“Complainants”) regarding a contract for the repair and remodel of an existing manufactured home at 49350 71st Street, Bouse, Arizona. After the Registrar assigned the Complaint to its inspector, Cliff Corlett, for investigation, he performed a jobsite inspection. Some items in the Complaint, including exterior trim and stairs on the side of the house, had been completed prior to the inspection. In the Corrective Work Order (“CWO”) issued on November 8, 2012, Inspector Corlett noted the following issues to be addressed by Respondent within 15 calendar days: 1. Electrical lines to the pedestal were complete subject to county building department final inspection and approval. 2. Properly complete installation of water heater. 3. Properly complete installation of inline water filter. 4. Properly complete installation of water heater cabinet door latch. 5. Relocated 220V range outlet for range. 6. Check and upgrade electric as needed to pass county building inspection including plugs, switches, and lights. 7. Properly complete all shelving throughout the house. 8. Provide and install all cabinetry. 9. Properly complete all plumbing projects in the house with all required inspections. 10. Properly complete installation of vanities, toilets, and mirrors in bathrooms. 11. Properly complete installation of doors and hardware. 12. Properly complete all cabinetry. 13. Properly complete all the finish carpentry in the house. 14. Properly complete all electrical in the house with all required inspections. 15. Properly finish all floor covering including properly trimming doors to operate correctly. 16. Properly connect contracted heat pump to new structure.

Specifically addressing the installation of the existing deck on the rear of the new structure, Inspector Corlett noted: Contract calls for [Respondent] to install [Complainants’] existing deck on rear of new structure. At the on site inspection [Respondent] stated that the “existing” deck would not pass code/inspection. IF this is the case then [Respondent] should not have put it in the contract. IF the deck needed reconfiguration then [Respondent] should have amended his bid to indicate the extra charge. [Respondent] should properly install existing deck on rear of [Complainants’] new structure, so that it complies with all codes and requirements, also the stairs and cover.

The parties did not discuss moving the front porch and repainting as needed at the time of the inspection, so it was not addressed in the CWO. The parties discussed adding a pantry in the laundry room and Inspector Corlett determined there did not appear to be enough room to install any pantry. Inspector Corlett was unable to inspect the ceiling area to determine if new insulation had been blown in. Complainants requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32- 1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, which was held on May 24, 2013. Inspector Corlett testified he performed a pre-hearing inspection, at which time he observed numerous items in the corrective work order had been completed, but Complainants indicated that they had completed much of the work themselves because Respondent failed to do so. Inspector Corlett noted that the existing deck had not been installed on the rear of the new structure, some exterior trim was loose, and stairs on the side were loose and did not meet code. With respect to those items outlined above, Inspector Corlett found the following: 1. The electrical lines to the pedestal had been inspected and approved. 2. A 40 gallon water heater had been installed while the contract called for a 50 gallon water heater. 3. The inline water filter had been installed. 4. The water heater cabinet door latch had been installed. 5. The 220V range outlet for range had not been relocated. 6. The electric had not been checked and updated as needed to pass county building inspection including plugs, switches, and lights. 7. Shelving was completed in the master, but was not completed in the utility room. 8. Cabinetry was installed, but Complainants indicated they performed the work. 9. The tub shower caulking was cracking. The shower enclosure in the master bath was not installed. 10. The vanities, toilets, and mirrors in bathrooms were installed, but Complainants indicated they performed the work. 11. Not all of the doors and hardware were installed. 12. All cabinetry was installed, but Complainants indicated they performed the work. 13. The finish carpentry in the house was completed, but Complainants indicated they performed the work. 14. The exhaust fans did not work. Other electrical in the house was completed, but Complainants indicated they performed the work. The ceiling fans were installed, but did not have the blades attached. 15. All floor covering including properly trimming doors to operate correctly was complete, but Complainants indicated they performed the work. 16. The contracted heat pump was connected to new structure.

Complainants submitted 20 exhibits and testified on their own behalf. Respondent submitted 12 exhibits, testified on his own behalf, and presented the testimony of Nicholas Hawkins, a subcontractor. Hearing Evidence Complainants’ prior contractor left their home repair and remodel unfinished, and Complainants sought bids to complete the job. On March 21, 2012, Complainants entered into a contract with Respondent for the repair and remodel of an existing manufactured home. Complainants notified Respondent that they needed the project completed by mid-October 2012, due to financing issues. At the time of the contract, Respondent indicated the job would take four to six weeks to complete. The contract included a list of “Items of be completed.” Included in the list of items to be completed were the following: New electric water heater (50 gallon). Install our existing deck and cover at rear of unit and install stairs. Build and install front and side decks and stairs. Move front porch and repaint exterior [where] needed. Blow new insulation into ceiling area (R 38 insulation). Shower enclosure (no tub) in master bath. Closet clothes bars and shelves. Exhaust fans in bathrooms and laundry room. Check to see if operation, if not replace. If operational, will need covers. Install all lighting fixtures and fans throughout.

During the course of the project, Respondent presented Complainants with two change orders. One was to build an 8’ x 12’ front porch with skirting installed and one was to install a new back door. Both change orders were signed on August 21, 2012, and Complainants paid for the changes at that time. Eventually, Complainants were dissatisfied with the rate at which the work was being done and filed the Complaint with the Registrar. After the CWO was issued, Respondent performed some additional work on the house. On November 21, 2012, Complainants sent an email to Respondent indicating the property would not be accessible to “unscheduled outside sources” from November 21, 2012, through November 25, 2012, due to the Thanksgiving holiday. Complainants testified that on November 21, 2012, Respondent contacted them and stated, “I’m done.” Respondent did not return to the house after that date. At the hearing, Respondent specifically acknowledged he did not install the kitchen cabinets with the island and sink, did not install the ceiling fans, did not install the shower enclosure, and did not complete the finish carpentry following the CWO. Respondent also admitted he did not blow in any insulation because the ceiling was already closed up when he arrived on the job. Respondent also admitted he failed to strictly comply with the contract with respect to the decks. Respondent stated he was unable to move the existing deck because the building inspector said it was not to code and would require modifications that were not included in the contract. Respondent testified he was not required to install the ceiling fans because the brackets holding the fans would need to be changed to hold the weight of the ceiling fan. Respondent testified that the item “Install all lighting fixtures and fans throughout” in the contract was referring to the exhaust fans in the bathroom. Respondent was unable to explain why the separate item “Exhaust fans in bathrooms and laundry room” was listed if the exhaust fans were included in “Install all lighting fixtures and fans throughout”. Respondent testified he was unable to complete other tasks because Complainants refused to sign change orders for those corrections. For example, Respondent stated the electrician installed the outlet for the range in the location identified by Complainants. When Complainants discovered it was in the wrong location and wanted it moved, Respondent informed them they would have to pay for the change. Similarly, Respondent testified Complainants changed the shower enclosure to a larger one than originally planned, which would require replumbing the area. Respondent testified he installed a 40 gallon water heater because the space was too small to hold a 50 gallon water heater. Respondent stated that he did not have Complainants sign a change order because the change would not increase the cost of the project. Respondent alleged he was denied access to complete the work both during the contract period and following the CWO. Complainants denied ever refusing Respondent access other than during the five days they were out of town for the Thanksgiving holiday. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on June 13, 2013, Respondent’s license was current and two complaints were pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainants bear the burden of proof to establish Respondent’s statutory violation 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). 3. Respondent acknowledged he failed to perform aspects of the contract. Respondent alleged he was not responsible for the deck because it would not meet code requirements. Similarly, Respondent stated he was unable to install insulation because the ceiling had already been closed. However, Respondent should have taken these factors into consideration when formulating his bid. 4. Respondent’s argument that he was not responsible for installing the ceiling fans and that the item “Install all lighting fixtures and fans throughout” was referencing the exhaust fans already addressed in the list of items to be completed was disingenuous. Again, Respondent should have considered the cost to change the brackets holding the fans when formulating his bid. 5. Respondent submitted a bid and entered into a contract to perform the list of items to be completed. By Respondent’s own admission, he failed to complete all of the items in the contract. 6. Complainants established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). 7. The evidence established that at the time of the prehearing inspection, there was loose exterior trim and that the stairs on the side of the house were loose and did not meet code. 8. Complainants established Respondent’s work on their house was not done in a professional and workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[1] 9. A contractor must be afforded access and an opportunity to perform corrective work to comply with a CWO before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(23).[2] The credible testimony offered at hearing established Complainants had not denied Respondent access to the property to comply with the CWO other than indicating they would be unavailable for “unscheduled” work over the Thanksgiving holiday. 10. It is also noted that Complainants completed work Respondent was contracted to complete and was instructed to complete in the CWO. However, Complainants provided Respondent with an opportunity to comply with the CWO prior to taking any action of their own. 11. Complainants established that Respondent failed to take appropriate corrective action to comply within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Vito Frederick Austin dba Vito’s Construction’s License No. KB-2.229267-D until it has performed in a professional and workmanlike manner the repairs that the CWO 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 CWO directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close the Complaint in Case No. 2012-5173. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, June 13, 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.” Emphasis added.

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