ALJDEC decisions subject to certification as final

2014A-3822-ROC · Registrar of Contractors · 2016-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2016, and March 10, 2016, with the record reopened and held open until April 11, 2016.[1] APPEARANCES: Complainant Sarah Trigg appeared on her own behalf. Respondent Parker Design and Construction Inc. was represented by ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Parker Design and Construction Inc. (Respondent) is the holder of License No. 188861 issued by the Arizona Registrar of Contractors (Registrar). On or about February 12, 2014, Complainant Sarah Trigg (Complainant) entered into a contract with Respondent to remodel a home she had purchased in Paradise Valley, Arizona. The contract provided that it was a cost-plus contract with an estimated project cost of $209,885.92 as set forth in Exhibit B of the contract. On or about September 16, 2016, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Matt Gunstra. On or about November 25, 2014, Investigator Gunstra performed a jobsite inspection. On or about December 23, 2014, Investigator Gunstra 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. Areas of concrete floor with wood flooring installation must not exceed a slope of 3/16” in a 10’ radius. Substandard areas should be corrected subsequent to removal of existing wood flooring by others. 2. Interior damage caused by roof leaks. Most notably ceiling wallboard in several areas damaged by water intrusion. 3. Damage to the office window and/or window screen[.] 4. Repair or replacement of the mirrored bedroom closet door as promised to Complainant by Respondent[.] 5. The laundry room door is lacking a final coat of paint[.] 6. The house to garage door jamb has damage that needs repaired and painted[.] 7. The master bathroom closet pocket door has peeling paint on the face and thin paint on the edge of the door. All doors should have paint that adequately covers the surface. 8. The dining room wall adjacent to the kitchen has a bulge and is out of straight by over ¼”[.] 9. The gypsum coating over the garage foundation wall, above the baseboard is wavy and poorly applied. A product that is appropriate for application on concrete surfaces exposed to moisture should be used. 10. The kitchen spice rack drawer and the trash can drawer do not soft close properly. Adjustments should be attempted by the installer to allow these cabinets to function properly. 11. The toe kick at the island has pieces that are not flush to the floor, are not aligned, overlap, and have unfilled nail holes[.] 12. The filler pieces in two corners at the kitchen base cabinets have nail damage and exposed nails in them[.] 13. The cabinet over the refrigerator shows signs of hammer damage on the right side trim[.] 14. There are protruding nails at the garage foundation[.] 15. Subsequent to Complainant removing all personal items from the areas, the garage and adjacent rooms’ floors should be cleaned of drywall mud[.]

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

The written directive indicated Respondent was to complete the corrective work by January 12, 2015. Investigator Gunstra stated that normally contractors are given 15 days to complete corrective work, but that he gave Respondent 5 additional days due to the holidays. On or about January 6, 2015, Respondent’s attorney contacted Investigator Gunstra and indicated that Respondent intended to comply with the written directive, but that Respondent disagreed with some of the findings. On or about January 12, 2015, the deadline given in the written directive, Complainant reported to Investigator Gunstra that some painters had arrived at her home that day unannounced and left before completing any corrective work. Investigator Gunstra forwarded the complaint to the legal department for further action. On or about January 13, 2015, Respondent sent an email to Complainant and copied Investigator Gunstra indicating it would return to do the corrective work. Investigator Gunstra responded that the complaint had been forwarded to the legal department. At the prehearing inspection, Investigator Gunstra determined that Respondent had not completed all of the corrective work detailed in the written directive. Investigator Gunstra stated that the screen to the office window had been repaired. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). A hearing was held on January 29, 2016, and March 10, 2016. Upon being questioned at the hearing, Investigator Gunstra stated that Complainant’s allegations regarding the intercom system were not addressed in the written directive because he was uncertain if the agreement was that Respondent was to install a new intercom system or if it was to reinstall the old system. Investigator Gunstra also stated he was unable to determine that the exhaust fan in the garage ceiling was not working properly although it appeared to him that it was not. Investigator Gunstra testified that he was uncertain if the home had been issued a certificate of occupancy by the city of Paradise Valley, but stated that a certificate of occupancy would indicate the project met building codes without any finding as to workmanship. At hearing, Complainant testified that she begged the city inspector to issue the certificate of occupancy because her family was going to be without a home if they were unable to move in at that time. Complainant stated the project was supposed to be completed by April 15, 2014, and still was not complete on May 24, 2014, when the certificate of occupancy was issued. Complainant indicated she knew there were still issues that needed to be finished and taken care of before the project was complete, but that she was without any options at that time. Complainant testified that she had identified at least 41 items that needed to be addressed within two weeks of moving in and that list was provided to Respondent. As to the written directive, Complainant testified that some painters showed up unannounced on January 12, 2015, and she allowed them in the home to perform some corrective work. Complainant indicated she was unwilling to leave the painters alone in her bedroom closet where she keeps some valuables; the workers were unwilling to perform the work while she watched and would not give her a few minutes to remove the items from the room before she left them to work. The workers left before they completed any work. Complainant testified that Respondent informed her that it was not required to tell her when it was coming to do the work because the written directive stated January 12, 2015, so she should have known they would be there that day. Complainant asserted that Investigator Gunstra informed her January 12, 2015, was a deadline, not a schedule. At the hearing, Kenneth Lamar Parker, Respondent’s Qualifying Party, testified that the cost-plus contract meant that the Estimated Project Cost attached to the contract as Exhibit B was not a final cost, but that the costs could change depending on material choices and labor required. Mr. Parker stated such price changes would be effectuated by the parties executing change orders. Mr. Parker asserted that the certificate of occupancy meant that the house was finished and that city codes and workmanship standards were “virtually identical,” meaning that a certificate of occupancy meant that the project met workmanship standards. Mr. Parker testified that Respondent’s workers showed up on and after January 12, 2015, and were denied access to effectuate the corrective work. Although many items were identified in the complaint and the written directive, the hearing focused on the wood flooring, the roof, and the exhaust fan in the garage. With respect to the wood flooring, the Estimated Project Cost included line items for “Prep Existing Concrete” for $2,750.00; “Concrete/Foundation Addition” for $8,500.00; “Wood Floor Materials – Install only” at $12,960.00. No change orders were supplied regarding any of these items. Respondent was initially planning on installing the wood floor, but realized that it was unable to perform the work at the price quoted; therefore, Respondent referred Complainant to “Tanner Materials” (Tanner) for the installation of the wood flooring. Tanner informed Complainant that the subfloor was not even and that installing the wood flooring on the subfloor may result in problems. After Respondent refused to fix the subfloor, Tanner installed the wood flooring and it immediately presented problems. Eventually, Complainant filed a complaint against Tanner who was instructed to reinstall the wood flooring after the subfloor had been repaired. Respondent asserted that Tanner “bought” the subfloor once it agreed to install the wood floor on top of it and that Respondent had no responsibility for the subfloor any longer. Respondent also argued that because the written directive required it to correct the subfloor after the wood flooring had been removed, and the wood flooring had never been removed, it was unable to complete that aspect of the written directive. Respondent did not make any attempts to coordinate with Tanner for a schedule regarding the removal of the wood flooring, the repair of the subfloor, and the reinstallation of the wood flooring. With respect to the roof, Respondent asserted that the written directive only required Respondent to repair the damage from the leaking roof and did not state the roof was leaking or require Respondent to repair a leaking roof. Complainant testified that the roof leaked in over 20 places, and only in those placed were Respondent performed work on the roof. Complainant stated that when the roofer came to perform some repair work on the roof, he informed her that Respondent had not called the roofer to come back out to the job site to seal the roof after the work was done and he believed this resulted in the leaking roof. With respect to the exhaust fan, Complainant testified that the exhaust fan, which is intended to remove the hot air from the garage in the summer, runs all winter and cannot be turned off and is off all summer and cannot be turned on. Complainant stated that the thermostat on the exhaust fan goes from 50 degrees to 90 degrees, but the research she has done since this problem presented itself indicates the thermostat should go from 130 degrees to 80 degrees. Respondent indicated that every change made was signed off on by Complainant, including the exhaust fan. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 2, 2016. Such prior License record reflects that Respondent’s License No. 188861 was first issued on September 16, 2003, and was suspended on October 1, 2015 for non- renewal and suspended for lack of bond on October 15, 2015. The record also reflects that there are two open complaints pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s administratively suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. 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). 4. While Respondent asserted that the certificate of occupancy meant that Respondent had conformed with the Registrar’s workmanship standards, Respondent did not provide any evidence that city building codes are “virtually identical” to the Registrar’s workmanship standards, other than Mr. Parker’s statement that they are. Respondent offered certain portions of the Registrar’s workmanship standards as an exhibit, but did not offer any corresponding portions of Paradise Valley’s building codes that would address those aspects of the complaint cited by the Registrar. Thus, Respondent’s argument that the certificate of occupancy establishes compliance with the workmanship standard is unpersuasive. 5. The weight of the evidence established that the work by Respondent was not in compliance with the Registrar’s workmanship standards, including those items identified in the written directive and the exhaust fan. Therefore, Complainant established that Respondent did not 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] 6. The undisputed credible testimony established that Respondent did not complete the corrective work identified in the written directive from the Registrar. Respondent did not establish that it was denied access to the home to complete the corrective work during the time frame identified in the written directive. 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 Respondent Parker Design and Construction Inc.’s License No. 188861. 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(E). 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, May 2, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The record was reopened due to an ex parte communication from Complainant received on March 29, 2016, to allow Respondent an opportunity to respond. Neither the ex parte communication or the response was considered by the Administrative Law Judge in reaching this Administrative Law Judge Decision. [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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826