ALJDEC decisions subject to certification as final

2014A-2023-ROC · Registrar of Contractors · 2015-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 2015 APPEARANCES: Complainant Lawrence H Rau appeared on his own behalf. Brandon Jeffries, Owner and Qualifying Party, appeared on behalf of Respondent Valley Residential Services LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Valley Residential Services LLC (Respondent) is the holder of License No. 282600 issued by the Arizona Registrar of Contractors (Registrar). On or about March 24, 2014, Complainant Lawrence H Rau (Complainant) entered into a contract with Respondent to perform a remodeling job on a home he had purchased in Sun City West, Arizona. The original estimate included more items, but the parties agreed to break the project down into two phases. The total contract price for phase one was $7,039.00 and Complainant paid half, $3519.50, on March 25, 2014. As the project proceeded, Complainant was not happy with the quality of work Respondent was doing. After speaking with a member of the homeowners’ association, Complainant was informed Respondent should have pulled a permit on the project despite Respondent’s assertion that no permit was required. After Complainant questioned Respondent’s work and the lack of permit, the relationship soured and eventually Complainant asked Respondent to stop working on the project. On or about May 19, 2014, Complainant filed a complaint with the Registrar. The Registrar assigned the complaint to Investigator Stephen Lawton. On or about October 30, 2014, Mr. Jeffries sent Complainant an email that read as follows: Walked our house today. You took the razor out. Nice flood damage. There will be a cease and disist [sic] letter on the front door today from maricopa county [sic]. No contractor is allowed to work on my property. I will go by every day and see to it. You need to pay your bill.\

That email was followed by another that read as follows: I have attached a letter for your review. I am having this letter attached to the front door of the house so everyone that goes by will know not to work on the property until further notice. I also included it in the body of this email. Brandon Jeffries 8701 W Daley Ln Peoria, Arizona, 85383 October 30, 2014 Larry and Brenda Rau 13530 W Spanish Garden Drive Sun City west, Arizona, 85375 Re: Cease and desist demand Dear Larry and Brenda Rau: Stop ALL work performed on or in this property. Lien rights on property in effect until lien is settled. This will serve as your legal notice to cease and desist all further actions described above. You are hereby instructed to comply with this letter immediately or face legal sanctions under applicable Federal and State law. Please give this very important matter the utmost attention. I intend to keep a log of any contacts you make with me after you receive this letter. Sincerely, Brandon Jeffries On or about November 6, 2014, Investigator Lawton conducted a jobsite inspection relating to the complaint. Complainant was present and Mr. Jeffries was present on behalf of Respondent. On or about November 7, 2014, Mr. Jeffries sent Complainant an email that read as follows: It was so nice seeing both of you yesterday. Im [sic] sure you know by now this will be a battle. I have my lawyer working on the foreclosure now. We have to wait 120 days before we do this. And we are doing it!! You might want to call a lawyer before you do a ton of work on that house. You are going to lose your investment. I have been very patient with you both. I wish the ROC was not at that meeting. That would have been fun. When do you want to settle the debt of $4400? On or about November 18, 2014, Mr. Jeffries sent Complainant an email that read as follows: I'm being forced by you and Brenda to foreclose on your property. In doing so I will now ask for my lawyers [sic] fee to be paid as well. Your total at the end of the day will increase to $10k. This is bad business on your part and you will lose your house. Please stop all work and frivolous spending. Don't hesitate to contact me to discuss. It's not to [sic] late.

On or about November 20, 2014, after a jobsite inspection, Investigator Lawton issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

License #282600, issued to Valley Residential Services LLC, was suspended for Lack of Bond on 10/16/2014 and cannot do or sub-contract the following corrective work until the suspension is lifted.

1. Permit Required By the Local Jurisdiction of Maricopa County. Correct by Appropriate Means. 2. Electrical in garage wall does not work in the wall and is not installed per code. Correct by Appropriate Means with Licensed Electrical Contractor. 3. Electrical in kitchen area not installed correctly. Appropriate Means with Licensed Electrical Contractor. 4. Dry wall work in the kitchen area on walls and ceilings. Correct by appropriate Means. 5. Bi-fold doors in closet within the kitchen area are not installed correctly. Correct by Appropriate Means. 6. Electrical in dining room area of the house had the electrical switches move and cover plate was silicone in place without screws holding the plate on and holes for the screws were covered up with silicone. Correct by Appropriate Means with Licensed Electrical Contractor. 7. Single kitchen cabinet on end of cabinet panel has not been cut correctly. Correct by Appropriate Means. 8. In the living room where the popcorn ceiling had been removed you can still see areas of the popcorn and had not been cleaned up well. Correct by Appropriate Means. 9. Where wall was cut back between the living room and kitchen the corner bead is cracking at the intersection of the wall and ceiling. Correct by Appropriate Means. 10. Plumbing under sink not connected per code to the waste line. Correct by Appropriate means with Licensed Plumbing Contractor.

The Registrar has determined that any workmanship violations alleged in the compliant but not listed above are unsubstantiated and do not require corrective action.

On or about December 10, 2014, Mr. Jeffries applied for a building permit for the work being done, but the application was incomplete. When Complainant learned of the incomplete application, he decided to go forward with a new application on December 15, 2014. On or about December 16, 2014, Mr. Jefferies requested that, because the permit was “after the fact,” he should be allowed to get in the house and do the corrective work and asked for a new deadline date. On or about February 17, 2015, the Investigator Lawton reissued the written directive from the Registrar with the notation that “License #282600, issued to Valley Residential Services LLC, was suspended for NON-RENEWAL on 01/05/2015 and cannot do or sub-contract the following corrective work until the suspension is lifted.” Respondent’s license was suspended when the new directive was issued and was not reinstated until May 2, 2015. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22). Complainant testified that he ended up performing the work himself even though he did not wish to do so. Complainant stated that he would have had no problem paying Respondent the remainder of the balance due on the contract but he did not want Respondent to try to take advantage of other customers. Complainant pointed out other threatening emails he received from Mr. Jefferies during this process. Mr. Jefferies acknowledged there was a breakdown in communication and asserted that part of that was on him and part of that was on Complainant. Mr. Jefferies argued that the emails raised by Complainant were “collection efforts” and were not harassment. Mr. Jefferies testified he was kicked off the job early and that the problems noted by Complainant, namely the paint touch up and bi-fold doors, would have been addressed during the final walkthrough had he been allowed to complete phase one. Mr. Jefferies also stated that he did not believe a permit was needed because the house was built in the mid-1970’s and a permit had never been pulled on the property despite extensive work having been done on it through the years. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 22, 2015. Such prior License record reflects that Respondent’s License No. 282600 was suspended for lack of bond from October 15, 2014, through December 10, 2014, and suspended for non-renewal from January 1, 2015, through May 2, 2015. Such prior License record also reflects that are six open complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears 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. The evidence established that Respondent did not pull the permit required for the project. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(2).[1] 4. The evidence established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[2] 5. The undisputed credible testimony established that Respondent did not comply with the written directive from the Registrar. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(22).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Valley Residential Services LLC’s License No: 282600. 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, December 22, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [2] 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.” 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.” [3] 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.”

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