ALJDEC decisions subject to certification as final

2014A-2313-ROC · Registrar of Contractors · 2015-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2015 APPEARANCES: Kathleen Sidoni on her own behalf; William Gabriel Terrazas for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On July 30, 2015, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing at 1:00 p.m. September 2, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint. 3. Respondent Arizona Restoration Experts, LLC (“ARE”), holds license number B.267098-R issued by the ROC.[1] William Gabriel Terrazas is ARE’s qualifying party and owner. 4. Complainant Kathleen Sidoni owns a residence located at 3425 West Sophia Street, Tucson, Arizona. The house is not located within the City of Tucson, but rather is under Pima County jurisdiction. 5. In August 2013 Ms. Sidoni’s home was extensively damaged by a storm. Ms. Sidoni hired ARE to repair the home. 6. No contract was offered into evidence and it appears that there was no written contract. Testimony at the hearing shows that the scope of work was to be based on an estimate prepared by Ms. Sidoni’s insurance company, but the parties then agreed to additional work that was not a part of that estimate. Paperwork from the insurance company shows that the replacement cost value of the repairs was $39,424. 7. The record is unclear as to the date, but it appears that ARE began work in mid-September. 8. On November 19, 2013, Ms. Sidoni’s mortgage company conducted an inspection of the home. The inspection report shows that the work was 72% complete at that time.[2] 9. On June 10, 2014, Ms. Sidoni and her husband filed a complaint with the ROC alleging that ARE had committed twenty-five violations. 10. In response to that complaint, ROC Investigator Steve Nelson conducted a job-site inspection on December 3, 2014. 11. Mr. Nelson determined that eight of the twenty-five alleged violations constituted violations of the workmanship standards. On December 5, 2014, ROC issued to ARE a “Directive” showing that ARE’s work on those eight items did not meet the minimum workmanship standards: 1. Complaint #2- Texture: texture on walls inconsistent and excessively sloppy 2. Complaint #3- Paint; spotty incomplete coverage 3. Complaint #4- Electrical; no permit obtained to run new electrical. Non functioning outlets. 4. Complaint #5- Plumbing; no permit obtained. Stated it "wasn't needed by licensed contractors" 5. Complaint #7- Tile, grout in floors and showers powdery, uneven, MANY holes, left unsealed. 6. Complaint #13- Socket and switch boxes not flush on wall. 7. Complaint #16- Carpentry; Pony wall not straight. Approx. 1.5 veer on 7' long wall. 8. Complaint #25- Multiple holes appearing in drywall where drywall screws are found.

Directive From ROC

12. ROC’s Directive required ARE to remedy the eight items using appropriate means. The Directive required ARE to provide ROC with written proof of its compliance with the Directive prior to 5:00 p.m. February 20, 2015. 13. The Directive also shows that no other items in the Sidonis’ complaint were verified and that no corrective action was required for those other items. 14. ARE did not comply with the ROC’s Directive and on May 26, 2015, ROC issued the Citation at issue in this matter. 15. On June 12, 2015, ARE filed a Response to the Citation. In its Response, ARE stated its willingness to complete “repairs [that] are warranted” given the passage of time since it had performed any work. ARE also stated (among other things) that it had been “thrown off the job” prior to completion of some work, that the homeowners and other contractors had completed work at the home, and that Mr. Terrazas had been advised by his attorney that he could not return to the home because Ms. Sidoni had informed ARE and Mr. Nelson that there was a restraining order prohibiting ARE’s return.[3] ARE then requested guidance from ROC on how to resolve this matter. 16. At the hearing, Mr. Nelson provided testimony that was consistent with “Jobsite Inspection Notes” dated December 3, 2014 that he had prepared. 17. As such, Mr. Nelson testified that the eight items listed in the Directive constituted deviations from the workmanship standards and that electrical and plumbing work undertaken by ARE required permits.[4] 18. Mr. Nelson testified that there was no set standard for workmanship on hand textured walls, but rather the requirement was that the texture be consistent and that there not be excessive texture. 19. At the hearing, Ms. Sidoni testified that an invoice from ARE dated December 5, 2015, shows that ARE used 1.5 inch thick insulation on the roof, and not two-inch.[5] As such, Ms. Sidoni’s opinion was that the roof did not have R30 insulation as required and as alleged in item 1 in her complaint.[6] Other documentation, including an invoice dated October 29, 2013, shows that ARE used the two inch insulation. Mr. Terrazas testified to the effect that the December invoice was based on what the insurance company estimate allowed, but he would be willing to change that invoice to reflect what was actually installed. 20. The evidence of record does not show that ARE failed to install R30 insulation at the home. 21. Ms. Sidoni and her husband completed some items including wiring at the house after ARE was removed from the job. 22. Mr. Terrazas testified that ARE did not comply with the Directive because its legal counsel in civil litigation between the parties had advised it not to do so, and because of he had been of the belief that ARE would not be allowed access without the sheriff present on the site and the sheriff’s office had indicated it was not willing to be present while any work was completed. 23. Ms. Sidoni’s prehearing memorandum shows that during Mr. Nelson’s inspection, she did tell Mr. Terrazas and Mr. Nelson that she would like a third party present while ARE completed any repairs. 24. Mr. Terrazas testified that ARE is willing to make the required repairs, although he was uncertain as to how to accomplish that in light of Mr. Nelson’s testimony that there was no set standard for the wall texture. 25. Ms. Sidoni is unwilling to allow ARE access to complete any needed repairs. At the time of the ROC’s inspection, she had informed Mr. Nelson that she would allow ARE access, however as of the hearing date she was no longer willing to do so, because in her opinion ARE has had enough chances. 26. Ms. Sidoni requests that ARE’s license be revoked. CONCLUSIONS OF LAW 1. Ms. Sidoni bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 3. The preponderance of the evidence shows that ARE conducted work for which building permits were required when neither it nor Ms. Sidoni had procured such permits, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2). 4. The preponderance of the evidence shows that for the eight items in the ROC’s Directive, ARE’s work was not done in professional manner, which is a violation of Ariz. Admin Code section R4-9- 108 and Ariz. Rev. Stat. section 32-1154(A)(3). 5. The preponderance of the evidence shows that ARE did not comply with the ROC’s Directive. Although ARE takes the position that its failure to comply was justified by Ms. Sidoni’s insistence that the sheriff be present for any work, ARE did not contact Ms. Sidoni to try to schedule any repairs after it received the Directive. As such, ARE did not have a valid justification for its failure, which is a violation of Ariz. Rev. Stat. section 32- 1154(A)(22). However, that Ms. Sidoni had expressed an unwillingness to allow ARE access without a third party present is taken as a factor in mitigation. 6. Because ARE has violated Ariz. Rev. Stat. sections 32- 1154(A)(2), (A)(3), and (A)(22), it license could be suspended or revoked. 7. Considering the nature of the violations at issue, the Administrative Law Judge typically would recommend that ARE be given an opportunity to correct any workmanship or other deficiencies before imposing discipline against ARE. In light of the facts and circumstances of this matter however, including that Ms. Sidoni ordered ARE off the job before it was able to complete or correct its work, that Ms. Sidoni is now unwilling to allow ARE to complete or correct the work at her house, and that the parties are engaged in civil litigation, it is not appropriate to issue an Order requiring ARE to make the appropriate corrections, nor is it appropriate to suspend or revoke ARE’s license. ORDER IT IS ORDERED that that the Citation in Case No. 2014-2313 is dismissed. 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 is forty days after the date of that certification.

Done this day, September 21, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s website shows Respondent’s license number as 267098. Consistent with existing policy, in this Decision the number set out in the caption is used. [2] The report shows that Ms. Sidoni expressed dissatisfaction with some of ARE’s work at that time. Other documentation prepared by Ms. Sidoni prior to that inspection shows however that she had been happy with ARE’s work. [3] ARE also noted however, that at the time of its response, no such restraining order was in effect. [4] In email correspondence between Mr. Nelson and Ms. Sidoni, he explained that it was ultimately the homeowner’s responsibility to obtain all required permits. In the Directive however, ROC informed ARE that it was required to obtain any necessary permits. [5] ARE also installed R19 insulation in the ceiling. [6] Mr. Nelson’s Jobsite Inspection Notes show that he was unable to verify this item.

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