ALJDEC decisions subject to certification as final

2012A-5876-ROC · Registrar of Contractors · 2014-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2014, at 8:00 a.m. APPEARANCES: Rajiv Ashar (hereinafter “Mr. Ashar” or “Complainant”) appeared on his own behalf. Priceless Construction Inc. (hereinafter “Priceless”) was represented by its qualifying party and officer, Leslie Allen Price (hereinafter “Mr. Price”). 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 Priceless is the holder of License No. B.134316-R issued by the Registrar of Contractors. This is a residential matter where Mr. Ashar entered into a written construction agreement with Priceless for an extensive remodeling of Mr. Ashar’s residence for the total sum of $198,641.17.[1] Mr. Ashar was dissatisfied with Priceless’ workmanship and with its failure to properly complete the agreed upon remodeling project. When Priceless failed to comply with Mr. Ashar’s repeated requests that Priceless repair its poor workmanship and properly complete the remodeling project, Mr. Ashar filed a formal Complaint against Priceless with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, the assigned Registrar Inspector, Randy Cason (hereinafter “Inspector Cason”), conducted an onsite inspection. Inspector Cason issued a written Corrective Work Order on January 25, 2013, directing Priceless to perform designated corrective work on Complainant’s residence. The Corrective Work Order provided, in pertinent part, as follows: Complaint #1 – Drywall installers need to patch and achieve level smooth finish as agreed upon.

Oval wall between the front entry and front room. Found that the drywall was within standards, no bow greater than 3/8 of an inch. Finish texture uniformed. No Action is required by the Respondent.

In Bedroom #1 – area above headboard of bed, the Respondent had started the repairs but has not completed the repairs. The Respondent is to correct by appropriate means.

In Bathrooms #1 & 2; found the drywall finish uniformed; within standards. No Action is required by the Respondent.

Powder room #1; Drywall repairs next to sink are not completed in a workmanlike manner. The Respondent is to correct by appropriate means.

Drywall behind wall mounted TV above fireplace; there is a large crack that appears to have been cause[d] by the weight of the TV flexing the framing support structure. The Respondent is to correct by appropriate means.

Complaint #2 – Painting is not completed as per the contract; main entry doors and gazebo have not been painted. There are areas throughout the interior and exterior that requires touch up painting. Verified that the entry doors and gazebo have not been painted at this time. Verified that there are areas in the utility room, kitchen, master closet and multiple other areas throughout the interior that need some touch up repairs. On the exterior of the house; found paint flaking off the East side of the house and along the footing of the garages and the planter walls. The Respondent is to correct by appropriate means.

Complaint #3 – Plumber has to tighten down toilet bowls down to the floor. In powder room #2; toilet bowl is not secured properly. The Respondent is to correct by appropriate means.

Complaint #4A – Tiles around the pool need to be smoothe[d] out and fill in grout gaps where missing. Exterior grout already is cracking. The interior of the house, grout is cracking near the metal baseboard. Prior to this inspection, the Respondent had made corrections to the tiles around the pool, however, the leaf strainer cover is not secured properly, and this is also the issues in complaint #11. The Respondent is to correct by appropriate means.

Complaint #4B – Found no cracks in the grout greater than 1/16 of an inch in the interior or exterior. No Action is required by the Respondent.

NOTE: Did find 3 exterior tiles behind the gazebo, along the face of the walkway south side, where the tiles are not secured properly. The Respondent is to correct by appropriate means.

Complaint #5 – The deco drains by the pool; plastic covering needs to be remove[d]. Verified; that there is still a plastic covering on the deco drains. Some areas the plastic cover has fallen off, while other areas still have the plastic on it. The Respondent is to correct by appropriate means.

Complaint #6 – Trash from project is still on the property. Verified; trash is stacked up next to the south garage. The Respondent is to correct by appropriate means.

Complaint #7 – The weather stripping and hardware that was installed is incomplete. There are multiple doors that the weather stripping and hardware is not completed properly. The Respondent is to correct by appropriate means.

NOTE: Old Hardware that had been removed to install new hardware to these existing doors, now doors have holes in the edges and faces that need to be repaired. The Respondent is to correct by appropriate means.

Complaint #8 – The powder room door is yet to be installed. Prior to this inspection, the Complainant had hired another contractor to install the door. However the door has not been completed. Paint and hardware needs to be completed by the Respondent. The Respondent is to correct by appropriate means.

Complaint #9 – The guest room closet door has been re-used, even though we were told it is a new door and is unfinished. Inspected the door; cannot determine if the door is new or not, however, I was able to determine that the door is not properly installed. Left side of the Bi-folding doors[’] reveal is not uniform . . . . The Respondent is to correct by appropriate means.

Complaint #10A – The baseboard installed in the loft restricts the door from closing properly. Confirmed: Striker side. The Respondent is to correct by appropriate means.

Complaint #10B – All of these items have been brought up to the CTR but have not been corrected. Was told project would take 4 to 6 months. NOTE: Respondent will comply with this Corrective Work Order. Reviewed the contract, no Jurisdiction over how long project takes, no specified completion date.

Complaint #11 – Same as #4

Complaint #12 – Study room; overhead lights; one missing clear plastic cover. Plastic cover is on the floor up against the wall. The Respondent is to correct by appropriate means.

Complaint #13 - In floor A/C return cover not installed in the kitchen. Confirmed; Proper floor register cover has not been installed. The Respondent is to correct by appropriate means.

Complaint #14 – Steam unit in master bath has hole in drywall. Found that the Respondent had not installed the cover plate for the steam system unit. The Respondent is to correct by appropriate means.

During the inspection the Complainant requested to add addendum complaint items to this complaint. The Respondent was not present for the inspection. The Addendum complaint items are as follows;

ADDENDUM ITEM #1 – Laundry room is missing plastic cover plate for water connections. Verified; cover plate not installed. The Respondent is to correct by appropriate means.

ADDENDUM ITEM #2 – Utility room missing switch cover plate and electrical breaker panel box is not sealed around the edges. Verified; Approx. ¼ inch gap around electrical breaker panel box and no switch cover plate installed. The Respondent is to correct by appropriate means.

ADDENDUM ITEM #3 – The 4 flower beds around the pool are not completed. Verified; not completed per contract. The Respondent is to correct by appropriate means.

ADDENDUM ITEM #4 – Gaps around outdoor barbecue and grill. Verified; not completed properly. The Respondent is to correct by appropriate means.

ADDENDUM ITEM #5 – Central Vacuum system is not installed per manufacture[r’]s specifications. Found that there is approx. 3/8 of an inch between the back of the systems connection plates and the wall. The metal baseboard that the Respondent had installed appears to be too long around these areas of the vacuum systems connection plates. This 3/8[”] space is not allowing the system to work properly. The Respondent is to correct by appropriate means.

ADDENDUM ITEM #6 – The contractor had damaged the paver driveway (south side) when he used a forklift to move and stack the tile material. Found that there is approx. an area of 10 feet that the driveway pavers have been compressed into the soil below, causing a large dip in the driveway. Complainant stated that the Respondent had caused this issue when he was moving the tiles around. I have no firsthand knowledge of who or what had caused this issue.

Testimony of Registrar Inspector Randy Cason Inspector Cason testified that he performed a pre-hearing inspection at Mr. Ashar’s residence on November 26, 2013, at 10:00 a.m. Inspector Cason stated that Priceless had not performed the corrective action required by the Corrective Work Order. Inspector Cason opined that Priceless had failed to comply with the terms of the Corrective Work Order. Inspector Cason’s testimony is found to be credible. Testimony of Rajiv Ashar Mr. Ashar testified that Priceless had failed to comply with the terms of the Corrective Work Order. Mr. Ashar stated that he was dissatisfied with the color and quality of the paint that Priceless had applied to Mr. Ashar’s residence. Mr. Ashar testified that the paint on the interior and exterior of his residence was “flashing” and that the paint was not Benjamin Moore paint as agreed upon between the parties at the onset of the construction project. Mr. Ashar testified that Priceless had left the new powder room without a door. Mr. Ashar stated that it had cost him $750.00 to install a door on the powder room so that the powder room could be used. Mr. Ashar testified that he was present and personally observed Priceless damage the pavers on his driveway by driving a loaded forklift over the pavers. Mr. Ashar testified that he did not like the finish of the drywall. Mr. Ashar stated that the new French doors do not close properly. Mr. Ashar testified that he had never denied access to Priceless to perform corrective work on his residence. Mr. Ashar’s testimony is found to be credible. Testimony of Anupa Ashar Anupa Ashar (hereinafter “Ms. Ashar”) testified that she is Mr. Ashar’s wife. Ms. Ashar stated that she agreed with Mr. Ashar’s testimony. Ms. Ashar testified that the construction work on her residence was still not completed despite the fact that it began several years ago. Ms. Ashar stated that it had been an agonizing period of time. Testimony of Leslie Allen Price Mr. Price acknowledged that Benjamin Moore was the specified brand of paint to be applied to Mr. Ashar’s residence. Mr. Price testified that Benjamin Moore paint was utilized to paint Mr. Ashar’s residence. Mr. Price stated that his painters were unable to satisfy Mr. Ashar’s demands and that “they gave up” and abandoned the construction project. Mr. Price testified that Priceless was unable to resolve Mr. Ashar’s drywall demands. Mr. Price stated that Mr. Ashar was very demanding and that Priceless ran out of money for the construction project because of the extra work that Priceless performed in an effort to satisfy Mr. Ashar’s demands. Mr. Price acknowledged that Priceless inadvertently damaged Mr. Ashar’s driveway pavers by driving a loaded forklift over the pavers. Mr. Price testified that it was an “unforeseen incident.” Mr. Price stated that Priceless was attempting to help Mr. Ashar by moving a large quantity of “Indian tile” for Mr. Ashar. Mr. Price testified that he discussed performing some of the directed corrective work on Mr. Ashar’s residence with Inspector Cason. Mr. Price acknowledged that Priceless had performed no corrective work on Mr. Ashar’s residence in response to the Corrective Work Order. Mr. Price stated that Priceless does not have the financial resources to comply with the terms of the Corrective Work Oder issued in this matter. Administrative notice is taken of Priceless’ prior license record as reflected on the Registrar of Contractors’ public website on January 24, 2014. Such prior license record reflects that License No. B.134316-R is current. License No. B.134316-R of Priceless was suspended from May 13, 2009, through November 30, 2009, for lack of bond, suspended from May 1, 2008, through May 2, 2008 for non-renewal, and suspended from August 24, 2006, through November 17, 2006, for lack of bond. CONCLUSIONS OF LAW 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. 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). The repairs to the drywall in Mr. Ashar’s residence have not been completed, the painting on the exterior and interior of Mr. Ashar’s residence is not complete and is flashing, the unworkmanlike tile installation around Mr. Ashar’s swimming pool and gazebo have not been corrected, the deco drains by the swimming pool still have plastic covers on them, trash from the construction project is still present on Mr. Ashar’s property, the flower beds around the swimming pool have not been completed, the gaps around the outdoor grill have not been corrected, and the damaged pavers on Mr. Ashar’s driveway require proper removal and replacement. Priceless failed to perform any corrective work on Mr. Ashar’s residence in response to the Corrective Work Order. Mr. Price stated that Priceless lacked funds to perform the directed corrective work. This Tribunal concludes that Priceless violated the charged provisions of A.R.S. § 32-1154(A)(3),[2] namely, A.A.C. R4-9-108,[3] and A.R.S. § 32- 1154(A)(23).[4] RECOMMENDed order In view of the foregoing, it is recommended that License No. B.134316- R of Priceless shall be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Priceless 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 Priceless 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 Priceless’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Priceless, 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, January 29, 2014. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. C (6/17/11 Estimate). [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [3] 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.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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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