ALJDEC decisions subject to certification as final

2014A-3303-ROC · Registrar of Contractors · 2015-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 24, 2015 APPEARANCES: Complainant Mike Merola appeared on his own behalf. Respondent Timothy’s Home Repair and Painting LLC appeared through Timothy Wedlake, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Timothy’s Home Repair and Painting LLC (Respondent) is the holder of License No. 284682 issued by the Arizona Registrar of Contractors (Registrar). Before his project began, Complainant Mike Merola (Complainant) purchased the hardware for a steam shower that he wanted to install. Complainant contacted Respondent regarding the project seeking a bid. Initially, Respondent indicated it was unable to complete the project as it had no experience with steam showers. A month or so later, Respondent came back to Complainant and said he had a plumber with experience installing steam showers and would be able to complete the project. Respondent examined the hardware provided by Complainant and came back a few days later with a bid. On or about July 7, 2014, Complainant entered into a contract with Respondent to remodel a master bathroom to include the installation of a steam shower for a total contract price of $5950.00 plus materials, supplies, and applicable sales tax. The estimated contract completion date was two weeks later on July 21, 2014. The contract provided that “[n]o payment shall be made in advance of job completion” and no progress payments were to be made prior to job completion. After the project began, Respondent determined that it was unable to install the steam shower because of concerns with the hardware provided by Complainant. Respondent asserted that plumbing and/or piping necessary for the proper installation of the hardware was missing. Mr. Wedlake testified that he tried to find an appropriate fix, but was unsuccessful. On or about August 18, 2014, after the project was at a standstill for more than three weeks, Complainant filed a Complaint with the Registrar alleging poor workmanship and abandonment. The Registrar assigned the complaint to Investigator Kyle Pich. On or about September 23, 2014, after a jobsite inspection, Investigator Pich 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:

1. Breach of contract, job abandoned. No permit pulled, property damage incurred.

Complete job to contract specifications pulling all required permits and using duly licensed contractors where and when necessary to complete required work.

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

Following the issuance of the written directive, Respondent contacted Complainant seeking to modify the contract. Respondent did not make any attempts to do any corrective work. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); 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 after the Registrar completed its investigation and gave him permission to complete the project, he hired a different contractor who was able to install the steam shower without any difficulty. The new contractor also identified other issues with the work done by Respondent that were not in compliance with the Registrar’s workmanship standards. Complainant presented a fixture during the hearing and demonstrated the plumbing used to attach the fixture. Upon being shown the fixture at the hearing, Mr. Wedlake maintained that the fixture presented was not the same as those Complainant provided at the jobsite. Mr. Wedlake stated that if the fix were that easy, he and his plumber would have been able to figure it out without any difficulty. Mr. Wedlake asserted that the hearing was a result of Complainant’s purchase of an inappropriate fixture and his insistence that Respondent make it work. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 14, 2015. Such prior License record reflects that Respondent’s License No. 284682 was first issued on May 29, 2013, and is current. 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 complete the bathroom remodel. Therefore, Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).[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 make any attempt to 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 suspend Timothy’s Home Repair and Painting LLC’s License No: 284682 for a period of two days. 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 14, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [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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