ALJDEC decisions subject to certification as final

2014A-3617-ROC · Registrar of Contractors · 2015-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2015 APPEARANCES: Complainant Jane Teixeira appeared representing her own interests. Armstrong Innovations, Inc., was represented by its authorized representative, member and qualifying party, Kenneth Armstrong. 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. Complainant Jane Teixeira (Complainant) was at one time the owner/occupant of a residence located at 2639 East Bisbee Way in Anthem, Arizona. Complaint has since sold that residence. 2. Respondent Armstrong Innovations, Inc. holds Arizona Contractor’s License Nos. 284126 and 182558. 3. On September 8, 2014, Complainant filed a complaint with the Registrar alleging abandonment, poor work and the money dispute stemming from an agreement she had with Respondent to remodel the kitchen and two bathrooms of her residence.[1] 4. In response to the complaint, the Registrar assigned investigator Kyle Pich to investigate these allegations. Pich left the Registrar in June 2015 and was hence unavailable to testify. The file provided by the Registrar reveals that Pich arranged to perform an inspection on January 13, 2015, at 8:00 AM and notified Complainant and Respondent of the time and place on the inspection. Respondent did not attend the inspection because he was under the impression that Complainant would no longer allow him back on her property and that he would simply spend the entire time sitting in his car. 5. Pich performed an inspection. He did not issue a directive to Respondent because his jobsite notes from the inspection revealed that “C[omplainant] also stated that R[espondent] was not allowed to do any repairs or return to her home for any reason.” Because Respondent lacked access to Complainant’s home, Respondent would have had no opportunity to comply with a directive. 6. Pich’s jobsite notes identified several workmanship violations including a bathroom faucet that ran rusty when first turned on, an unlevel shower shelf that held water, an inproperly installed pocket door and cracked grout in both bathrooms. At that point, Pich decided to forward the file to the Registrar’s legal department for further processing and disposition. 7. At hearing, Timothy Pennington, another investigator with the Registrar, testified. He noted that he reviewed the file for purposes of the hearing and that his review confirmed the violations found by Pich as well as the existence of some additional instances of poor workmanship. These included a kitchen cabinet that had scarred wood and a receptacle that was ¼ inch lower than the original outlet. Pennington explained that neither he nor Pich found that Respondent’s failure to complete the work amounted to a workmanship violation. Pennington testified that Complainant’s charge of abandonment could not be substantiated. 8. On May 26, 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).”[2] The Citation did not cite Respondent for abandonment of the remodeling project. 9. Complainant testified that Respondent routinely missed deadlines for the remodeling project and then failed to complete much of the work as promised. She said that completing this work had cost her a substantial amount of money and turned the house into a money pit, ultimately leading her to sell it. Complainant indicated that she learned that rather than meet agreed-upon deadlines, Respondent went on vacation. Complainant noted that she documented the condition of the house by having a private inspection done shortly after Respondent stopped working at her residence. That inspection report is part of that Registrar’s file, but was not relied on by the Registrar in assessing workmanship violations. Complainant did not have the inspector who completed the report testify at hearing. 10. Kenneth Armstrong testified and took issue with Complainant’s characterization of his having abandoned the project, but did not belabor the point because it was not charged in the Citation. Mr. Armstrong acknowledged that some of Respondent’s work or that of its workers constituted poor workmanship. This work included using the wrong sealant on the grout in the bathrooms, installation of a receptacle that was lower than the existing outlet, and scarred wood on one of the kitchen cabinets he made. Respondent likewise agreed that if the shower shelf was holding water that would fall below the workmanship standards. He denied that Respondent had installed the pocket door wrong and maintained that his work had simply not been completed. He said that neither he nor his men put nails in the pocket door and that had Respondent been allowed to finish the job, the pocket door would have been removable. As to all of the workmanship issues, Mr. Armstrong testified that he would have fixed those issues if given the opportunity. 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 is named as the rule violation charged pursuant to A.R.S. § 32-1154(A)(3). That rule 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, Complainant 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 performed work in Complainant’s home, it did so in a manner that resulted in cracking of the grout in the bathrooms, scarring of a kitchen cabinet, installation of an unlevel shelf in the shower, and a receptacle that was lower than the existing outlet. The Tribunal also finds that the record supports a finding that Respondent performed work on Complainant’s bathtub faucet and is responsible the workmanship issue raised by rust in the water of that faucet when it is first turned on. Complainant established Respondent’s work on the above items 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.[3] 4. Because of the passage of time however, the Tribunal cannot determine on the present record if the pocket door was simply an example of incomplete work or is, in fact, a workmanship violation. 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 Nos. 284126 and 182558 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 4, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Tribunal took administrative notice of the Registrar’s case file containing Complainant’s complaint. [2] See Exhibit A (Citation dated May 19, 2015) [3] 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.”

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