ALJDEC decisions subject to certification as final

2013A-4480-ROC · Registrar of Contractors · 2014-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2014, at 8:00 a.m. APPEARANCES: The Registrar of Contractors (hereinafter “the Registrar”) was represented by Assistant Attorney General, John Tellier, Esq. Dfine Cabinetry LLC (hereinafter “Dfine”) was represented by its attorney, Kevin F. McCarthy, Esq. McCarthy Law P.L.C. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Background At the onset of the scheduled hearing, Dfine admitted violations of the charged provisions of A.R.S. § 32-1154(A)(3),[1] namely, A.A.C. R4-9- 108,[2] A.R.S. § 32-1154(A)(13),[3] namely, A.R.S. § 32-1158(B),[4] and two violations of A.R.S. § 32-1154(A)(23).[5] Dfine stipulated that License No. C-30.235564-R of Dfine would be suspended for a period of three days, that Dfine would provide the Registrar with written proof that all of Dfine’s contracts/proposals had been brought into full compliance with the provisions of A.R.S. § 32- 1158(B). Dfine further stipulated that it would pay a $1,000.00 civil penalty to the Registrar of Contractors for the two admitted violations of A.R.S. § 32-1154(A)(23). FINDINGS OF FACT Dfine is the holder of License No. C-30.235564-R issued by the Registrar of Contractors. On September 19, 2012, Alexander Borshch (hereinafter “Mr. Borshch”) filed a complaint with the Registrar alleging poor work by Dfine in its performance of its May 19, 2012 contract to install kitchen cabinets and a wet bar in Mr. Borshch’s residence located at 8959 East Surrey Avenue, Scottsdale, Arizona, for $17,000.00. Dfine’s contract did not contain all of the elements required by A.R.S. § 32-1158(B). Dfine’s contract did not contain the Registrar's telephone number and website address and did not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155.[6] On October 17, 2013, the Registrar conducted a jobsite inspection and subsequently issued a Corrective Work Order directing Dfine to remedy its deficient workmanship at Mr. Borshch’s residence. On January 3, 2013, the Registrar conducted another jobsite inspection and subsequently issued another Corrective Work Order directing Dfine to remedy its additional deficient workmanship at Mr. Borshch’s residence. Dfine failed to take appropriate corrective action to comply with the Registrar’s November 2, 2012 and January 9, 2013 Corrective Work Orders. CONCLUSIONS OF LAW Dfine’s construction work at Mr. Borshch’s residence failed to meet workmanship or industry standards and constituted a violation of the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. Dfine’s May 19, 2012 contract with Mr. Borshch does not contain all the elements required by A.R.S. § 32-1158(B). Dfine failed to take appropriate corrective action as required by the Registrar’s written directive, the November 2, 2012 Corrective Work Order. Dfine failed to take appropriate corrective action as required by the Registrar’s written directive, the January 9, 2013 Corrective Work Order. RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. C-30.235564-R of Dfine shall be suspended for a period of three days. It is further recommended that commencing on the effective date of the final Order, License No. C-30.235564-R of Dfine shall be placed on license suspension until the Registrar receives and accepts written proof that Dfine has brought all of its contracts and proposals to within full compliance with the provisions of A.R.S. § 32-1158(B). It is further recommended, in addition to the above-provided penalties, if any, that Dfine pay the sum of $1,000.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Dfine to pay the entire amount of the aforesaid civil penalty on or before days following the effective date of the Order entered in this matter shall result in the automatic revocation of Dfine’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Dfine, 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 28, 2014.

/s/ M. Douglas 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, violation of any rule adopted by the registrar. [2] 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.

[3] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

[4] A.R.S. § 32-1158 provides, in pertinent part, as follows: B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

[5] 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. [6] See Exhibit No. 3 (5/19/14 Proposal/Contract).

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