ALJDEC decisions subject to certification as final

2013A-5896-ROC · Registrar of Contractors · 2015-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2015 APPEARANCES: Complainants Jim and Linda Tarron appeared representing their own interests. Done Rite L.L.C., dba Done Rite Maintenance was represented by its authorized representative, member and qualifying party, Edward Hernandez. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainants Jim and Linda Tarron are the owners/occupants of a residence located at 5469 East Lancaster Street, Globe Arizona 85501-4300. 2. Respondent Done Rite L.L.C., dba Done Rite Maintenance holds Arizona Contractor’s License No. 214284. 3. On December 23, 2013, Complainants filed a complaint with the Registrar alleging that they had entered an agreement with Respondent to remodel their home and that he had begun work without authorization and building permits and had also done poor work. In total, the complaint listed 26 complaint items. 4. In response to the complaint, the Registrar assigned investigator Beau Cruz to investigate these allegations. Cruz testified that he arranged to perform an inspection on February 10, 2014, and notified the Complainants and the Respondent of the time and place on the inspection. Both Respondent and Complainants were present at that inspection. Cruz indicated that at the time of an inspection he substantiated several of Complainants’ allegations regarding poor workmanship including: (a) problems with the covered porch slab’s broom finish and propensity for puddling water; (b) issues with a bathroom in that the wrong window was installed, the shower door opened in the wrong direction and safe egress from the shower was impeded by the toilet; (c) a bedroom wall was not repaired; (d) the ceiling in the dining room sagged; (e) problems with the kitchen pantry lacking shelves and having a pocket door that both jumped off track and had a gap; (f) a wall in the dining room was bulging; (g) kitchen walls that had been tagged but not completed; and, (h) tile throughout the house was uneven, crooked, improperly grouted or had lippage presenting a tripping hazard. 5. On April 1, 2014, Cruz sent Respondent a Directive from the Registrar. The directive listed all 26 complaint items, indicated that permits should be obtained and the parties’ agreement followed. The directive detailed the above workmanship issues and noted “[t]he Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. “ 6. Cruz testified that when he returned for a compliance inspection on May 12, 2014 none of the items had been addressed. He said that when he returned to the home on December 5, 2015 for a prehearing inspection, he found its condition unchanged. 7. Hernandez testified that he was not disputing that several items of work performed fell below the Registrar’s minimum workmanship standards. In particular, he acknowledged that the wrong shower door had been installed, that the tiles throughout Complainants’ residence and the pantry door had workmanship issues associated with them, and that the covered porch slab required repair. Hernandez agreed that Complainant’s son-in-law, who was one of his subcontractors, had opened a wall that they were not even going to work on in the bedroom. He said the reason Respondent did not address these workmanship issues was lack of access. 8. Hernandez denied that the window in the bathroom represented a workmanship issue. He said Linda Tarron told him it was okay not to put in any window, but he felt bad that the bathroom would be windowless and thus installed a window anyway. He agreed that the installed window was different in size than the one anticipated by Complainants. 9. On May 14, 2015, the Registrar of Contractors issued Respondent a Citation for Alleged Violation of Rule 4-9-108. That Citation contained only one charge, in particular: “A violation of Rule 4- 9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” The citation did not cite Respondent for failure to take corrective action. APPLICABLE LAW The Citation issued by the Registrar of Contractors charged Respondent with a possible violation of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108, the workmanship rule). That statutory section requires that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. A.A.C. R4-9-108 provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established that when Respondent did work in Complainants’ home, it did so in a manner that created a litany of problems that included: (a) problems with the covered porch slab’s broom finish and propensity for puddling water; (b) issues with a bathroom in that the wrong window was installed, the shower door opened in the wrong direction and safe egress from the shower was impeded by the toilet; (c) a bedroom wall was not repaired; (d) the ceiling in the dining room sagged; (e) problems with the kitchen pantry lacking shelves and having a pocket door that both jumped off track and had a gap; (f) a wall in the dining room was bulging; (g) kitchen walls that had been tagged but not completed; and, (h) tile throughout the house, was uneven, crooked, improperly grouted or had lippage presenting a tripping hazard. 4. Complainants established Respondent’s work detailed above 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] 5. A contractor must be afforded access and an opportunity to perform corrective work to comply with a Directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(22).[2] This section is inapplicable in this case because Respondent was not cited for failure to comply with a directive from the Registrar. Respondent was cited for its admittedly poor workmanship. RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, Respondent's Arizona Contractor’s License No. 214284 shall be suspended for a period of three (3) days. 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, December 24, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, 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)(22) 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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