ALJDEC decisions subject to certification as final

2014A-3941-ROC · Registrar of Contractors · 2015-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 20, 2015, at 1:00 p.m. APPEARANCES: Betty J. Reed and Suzanne E. Reed (hereinafter “Complainants”) appeared telephonically through Suzanne E. Reed (hereinafter “Ms. Reed”). Cantrell Development Inc. (hereinafter “Respondent”) appeared telephonically through its Qualifying Party/Officer, John P. Cantrell (hereinafter “Mr. Cantrell”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) as alleged by Complainants and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of License No. B-251934-R issued by the Registrar.[1] Respondent’s license is current. 2. This is a residential matter in which on or about April 30, 2014, Complainants purchased a new residence constructed by Respondent at 2451 Del Mar Ave., Kingman, Arizona 86409 (hereinafter the “residence”).[2] 3. Complainants were dissatisfied with the Respondent’s workmanship on their new residence and on or about September 3, 2014, provided Respondent with a written list of items that were either poorly done or incomplete. 4. Respondent failed to resolve the items to Complainants’ satisfaction and on or about September 30, 2014, Complainants filed a Complaint against Respondent with the Registrar. 5. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainants’ residence. 6. On October 22, 2014, a written Directive was issued by the Registrar. 7. The written Directive provided, in relevant part, 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. Unfinished poor quality painting of interior and exterior repairs…. Respondent should correct by appropriate means.

2. Damaged molding at floor….Respondent should properly correct any/all damaged interior molding.

3. Separation between walk-in tub and wall…. Respondent agreed to properly install a tile “splash” at tub to wall connection point to cover this area.

4. Damage to door molding at hall bath. Respondent agreed to properly correct.

5. Granite kitchen counter top cracked…. No contractor action required.

6. Poor installation of microwave…. No violation.

7. Cracks in pantry and by patio door…. Respondent needs to make proper repairs matching the surrounding area as closely as possible.

8. Was told no paint on interior, just primer…. Respondent should properly repaint any and all wall surfaces for current and/or need repairs and match surrounding areas as closely as possible.

9. Separation of microwave interior…. See #6 above.

10. Granite kitchen countertop cracked….See #5 above.

11. Garage door sensor. Garage door gets stuck when the sun is intense. Ctr promised to correct…. The ROC requested that the Respondent examine this complaint allegation and if this is an installation issue than please address.

12. Light on front yard pole not working. (Doorbell light not working)…. The ROC requested that the Respondent examine this complaint allegation and if this is an installation issue than please address.

13. Palm tree removal from backyard…. This would now appear to be, if anything, a civil matter.

14. Drawer to master vanity damaged, removed, replaced with damaged drawer…. Respondent should correct by appropriate means.

15. Damaged areas of exterior stucco…. Respondent agreed to correct by appropriate methods, matching surrounding areas as closely as possible. Overspray on garage doors should also be properly corrected.

16. Gates on both sides of house hit hose bib…. Respondent had corrected one gate obstruction prior to inspection and agreed to properly adjust both gates to operate smoothly and put a stop device on the garage gate so that it will not swing out and hit hose bib.

17. Damaged molding in several places around house not properly repaired….Respondent agreed to properly correct.

18. Tile lippage.… 4 tiles were demonstrated to have excessive lippage, one in kitchen, one in dining area, one in master bedroom and one in master bath. This inspection did not check every tile. Respondent and Complaint should check ret of floor for any additional tile that exceed the allowed standards and respondent should properly correct matching the surrounding tile as closely as possible.

8. The parties disputed whether Respondent had complied with the terms of the written Directive issue by the Registrar. 9. When the parties were unable to resolve their dispute, Complainants requested that the Registrar issue a Citation against Respondent’s licenses. 10. On May 18, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 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).[3]

Testimony 11. The assigned Registrar Investigator, Cliff Corlett (hereinafter “Investigator Corlett”), testified that he issued the Directive that was issued in this matter after his first onsite inspection. Investigator Corlett stated that he performed a compliance inspection on January 5, 2015. Investigator Corlett said that Respondent had completed most of the items on the written Directive but that the painting and the damaged drawer were still at issue. 12. Investigator Corlett said that he conducted a prehearing inspection on September 16, 2015. Investigator Corlett said that minor paint touch-ups in mom’s room and bathroom still needed to be performed, the damaged drawer in the master bathroom had not been corrected, and that there was still a strip of bare wood that had not been painted by a door. Investigator Corlett said that Complainants also complained about scuffs on the master bedroom door, and paint flashing on the interior paint in the living room. Investigator Corlett said that he was unable to determine the cause of the scuff marks and that he believed the interior paint in the living room to be a reasonable match. 13. Investigator Corlett testified that the onsite inspections were always argumentative. Investigator Corlett acknowledged that on one occasion he did have to ask the Respondent to leave Complainants’ residence. 14. Investigator Corlett’s testimony is found to be credible. 15. Ms. Reed reviewed the history of Complainants buying a new home from Respondent. Ms. Reed testified that he requests for repairs items were initially ignored by the Respondent. Ms. Reed stated that Respondent failed to honor its warranty and that Mr. Cantrell was very difficult to work with. Ms. Reed said that it was like a tug-of- war to get the Respondent to do any corrective work. 16. Ms. Reed testified that the Respondent failed to perform the corrective work set forth in the Registrar’s written Directive within the 15 day period set forth in the Directive. Ms. Reed said that all of the work is still not complete. Ms. Reed said that the vanity drawer still needs to be replaced. Ms. Reed said that Complainants were forced to hire their own contractor to perform painting that Respondent had failed to perform. 17. Ms. Reed testified that there are still five doors and door frames in the residence that require touch-up, the damaged drawer still requires replacement, there is an area of bare wood by the front door, her mother’s bedroom has never been correctly painted, and that there is water damaged drywall in her mother’s bedroom. Ms. Reed acknowledged that the water damaged drywall was supposed by corrected on November 21, 2015. 18. Ms. Reed’s testimony is found to be credible. 19. Mr. Cantrell acknowledged that this had been a long drawn-out complaint. Mr. Cantrell testified that Respondent had not replaced the damaged drawer because Respondent was waiting for the manufacturer to manufacture another run of this type of drawer which is supposed to happen in December, 2015. Mr. Cantrell said that damaged drawer would be replaced with a new drawer as soon as the proper drawer could be obtained from the manufacturer. 20. Mr. Cantrell testified that the other items of the written Directive had been completed by the Respondent except for the paint touch-up. Mr. Cantrell acknowledged that he did not have a good personal relationship with Complainants. Mr. Cantrell stated that after his painters had completed corrective work on Complainants’ residence the Complainants had denied the Respondent further access to their residence to perform additional touch-up work. Mr. Cantrell said that Respondent was willing to pay another painter to perform the paint touch-up. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[4] The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence.[5] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Investigator Corlett credibly testified that minor paint touch-ups in mom’s room and bathroom still needed to be performed, the damaged drawer in the master bathroom had not been corrected, and that there was still a strip of bare wood that had not been painted by a door. Ms. Reed credibly testified that there are still five doors and door frames in the residence that require touch-up, that the damaged drawer still requires replacement, that there is an area of bare wood by the front door, and that her mother’s bedroom has never been correctly painted. Complainant established by a preponderance of the evidence that Respondent’s construction work on Complainant’s residence failed to meet minimum workmanship standards. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, that License No. B-251934-R of Respondent shall be suspended for five (5) 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 five days from the date of the certification. Done this day, December 4, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This classification allows the licensee . [2] See Complaint with attachments in electronic file. [3] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[4] See A.R.S. § 32-1154(A). [5] See A.A.C. R2-19-119. [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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