ALJDEC decisions subject to certification as final

2014A-4147-ROC · Registrar of Contractors · 2016-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2016, at 3:00 p.m. APPEARANCES: Jason Walton, Theresa Walton, Melody Johnson and Jim Lee Walton (hereinafter “Complainants”) appeared through Jason Walton. All in One Arizona LLC (hereinafter “Respondent”) was represented by its attorney Brian DiPietro, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(2), 32-1154(A)(3), 32-1154(A)(16) and 32-1154(A)(22) as alleged by Complainant 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 Respondent is the holder of License No. R-62.290508-R issued by the Registrar.[1] Respondent’s License is current. This is a residential matter in which on or about July 3, 2014, Complainants entered into a contract with Respondent for the remodeling of Complainants’ residence at 41847 W. Capistrano, Maricopa, Arizona 85138 (hereinafter the “residence”) for the sum of $27,280.00. During the course of construction the Complainants became increasingly dissatisfied with Respondent’s workmanship and on October 10, 2014, Complainants filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of the residence. On February 10, 2015, a written Directive was issued by the Registrar. 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. This contractor is to secure a permit from the local building authority and have all necessary inspections passed. 2. Ensure that all electrical, plumbing, and A/C work, completed by this contractor, meet local building code requirements by way of inspections passed by that local building official. 3. Reconstruct the in-law suite shower with tile as intended in the specifications of the contract and ensure proper drainage. 4. Excessive lippage of the wall and floor tile in the in-law suite bath. Exceeds 1/32 of an inch. 5. Tile Niche has poorly finished edges in the in-law suite. 6. Improper and excessive grout width top of base tile to the left of the shower. 7. Missing caulk around toilet base. 8. Wrong color paint touch up at left side of right vanity top side splash. 9. Bath cleanout leaks into family room. 10. Pocket door is crooked, door does not align properly with jamb, sloppy cut around door latch on edge of door, and exposed concrete floor at pocket door cavity. 11. Outlets are not straight at the vanities and one is cracked. 4 gang light switch plate not properly installed going into bath. 12. Hot and cold are reversed at the shower valve. 13. 2 excessive gaps on the wood floor at the in-law suite entry. 14. Improper stagger of wood floor joints especially at the entry into the suite. 15. Frayed edges of wood flooring at baseboard near suite bed. 16. Missing hinges on the closet cabinet bi-fold doors. 17. Scratches, imperfections, and unfilled holes on the closet cabinetry and on the microwave cabinetry. 18. Gaps around outlet plates. 19. Poorly installed molding at door to suite. Poorly cut and prepped baseboard throughout suite. 20. Scuffs on doors and walls not touched up. 21. Ensure pot filler connection above kitchenette area is per code requirements. 22. Install side splash and back splash at laundry sink countertop. 23. Paint imperfections and missed edges on the interior doors. 24. Poor drywall joint on the wall next to den entrance. 25. No adjustment holes were drilled for the closet rods. 26. The in-law suite bath medicine cabinet was installed into an exterior bearing wall with no header put in. Repair outside stucco holes caused by the medicine cabinet wall.

The Directive also informed the Respondent that as follows: “You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.” Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainants filed written notification on May 2, 2015, that there “has been not contact at all through phone calls, texts or email to arrange for repairs on residence….” On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained four charges: Charge 1: A violation of A.R.S. § 32-1154(A)(2).[2]

Charge 2: 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]

Charge 3: A violation of A.R.S. § 32-1154(A)(16).[4]

Charge 4: A violation of A.R.S. § 32-1154(A)(22).[5]

The assigned Registrar Investigator, Theodore Gerald (hereinafter “Investigator Gerald”) testified that he performed the initial jobsite inspection at the residence on January 20, 2015. Investigator Gerald stated that the construction project included electrical and plumbing work and required a construction permit from the local building authority. Investigator Gerald said that Respondent failed to obtain the required construction permit. Investigator Gerald said that the performance of electrical and plumbing work was beyond the scope of Respondent’s license. Investigator Gerald said that he issued a 26 item written Directive. Investigator Gerald said that Respondent’s construction work at the residence failed to comply with applicable workmanship standards. Investigator Gerald testified that he performed a prehearing inspection on January 12, 2016. Investigator Gerald said that no corrective action had occurred. Investigator Gerald opined that Respondent did not comply with the Registrar’s Directive. Investigator Gerald’s testimony is found to be credible. Terry Lee Shaffer (hereinafter “Mr. Schaffer”) testified that he had been a journeyman electrician for 12 years and that he had a KB-1 License.[6] Mr. Shaffer stated that he had reviewed the Registrar’s written Directive and performed an extensive investigation at the residence. Mr. Shaffer said that he observed numerous code violations in the electrical, plumbing and HVAC work that Respondent performed at the residence. Mr. Shaffer said that the much of the work completed by Respondent was inadequate and needs to come out. Mr. Shaffer’s testimony is found to be credible. Jason Walton (hereinafter “Mr. Walton”) testified that the only written contract that Respondent provided was the written invoice for $27,280.00.[7] Mr. Walton stated that he asked the Respondent if Respondent’s electrical work was up to code standards and that Respondent assured him that it was. Mr. Walton said that Respondent’s work was very poor. Mr. Walton said that Respondent tried to correct the shower three separate times and failed each time. Mr. Walton said that Complainants filed their Complaint against the Respondent when the Respondent abandoned the construction project. Mr. Walton acknowledged that he wanted to keep the costs down for the project. Mr. Walton denied that he attempted to direct the Respondent’s work. Mr. Walton denied directing the Respondent to perform the construction work on the residence without required construction permits. Jim Walton (hereinafter “Mr. J. Walton”) testified that he was under the impression that Respondent was properly licensed to perform the agreed upon remodeling work when Complainants retained Respondent to perform the remodeling project on the residence. Mr. J. Walton stated that in response to the terms of the written Directive the Complainants obtained bids from three licensed contractors for performing the corrective action set forth in the written Directive and submitted them to the Respondent for the Respondent’s approval. Mr. J. Walton said that Respondent rejected all the bids. Michael Vera (hereinafter “Mr. Vera”) is the qualifying party for the Respondent and a member of the LLC. Mr. Vera testified that the Complainants were referred to the Respondent by a real estate agent. Mr. Vera stated that he informed the Complainants that he had just graduated from ASU and that it was his first year in the business. Mr. Vera denied that Respondent had entered into a construction agreement with Complainants for the performance of a remodeling project on the residence. Mr. Vera said that the invoice in the sum of $27,280.00 was for several small construction projects that the Respondent completed at the residence. Mr. Vera said that Respondent used qualified individuals from licensed plumbers and electricians to perform the plumbing and electrical work at the residence. Mr. Vera said that the said individuals were performing the electrical and plumbing work as side-jobs to their normal employment. Mr. Vera opined that all of the electrical and plumbing work on the residence complied with code requirements. Mr. Vera acknowledged that Respondent had not provided Complainants with a written contract. Rafael Vera (hereinafter “Mr. R. Vera”) testified that he is a partner in Respondent. Mr. R. Vera said that his son, Mr. Vera, is the managing partner. Mr. R. Vera said that he thought that Respondent had performed several small projects at the residence rather than one large remodeling project. Mr. R. Vera said that he believed that others had worked on the residence and had changed the work that had been performed by Respondent. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[8] 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.[9] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[10] Investigator Gerald credibly testified that the construction project included electrical and plumbing work and required a construction permit from the local building authority. Investigator Gerald said that Respondent failed to obtain the required construction permit. Investigator Gerald said that the performance of electrical and plumbing work was beyond the scope of Respondent’s license. Investigator Gerald said that he issued a 26 item written Directive. Investigator Gerald said that Respondent’s construction work at the residence failed to comply with applicable workmanship standards. Investigator Gerald said that he performed a prehearing inspection on January 12, 2016. Investigator Gerald said that no corrective action had occurred. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(2), 32-1154(A)(3), namely, A.A.C. R4-9-108, 32-1154(A)(16), and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. R- 62.290508-R of Respondent be revoked. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses 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 payment of any outstanding prior civil penalty is tendered. 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, January 28, 2016.

/s M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The scope of an R-62 License is as follows:’

MINOR HOME IMPROVEMENTS Remodeling, repairs, and improvements to existing structures or appurtenances not to exceed $5,000 for labor and materials per project per dwelling or appurtenance. The minor home improvement contractor shall not perform structural work to any existing structures or appurtenances, including load bearing masonry or concrete work (with the exception of on-grade flat work), and load bearing carpentry work (with the exception of patio or porch covers). All electrical, plumbing, air conditioning, heating, boiler, and roofing work shall be performed by an appropriately licensed contractor. [2] A.R.S. § 32-1154(A)(2) provides, in relevant part, as follows:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: . . . . 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

[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] A.R.S. § 32-1154(A)(16) provides, in relevant part, as follows:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: Knowingly contracting beyond the scope of the license or licenses of the licensee.

[5] A.R.S. § 32-1154(A)(22) provides, in relevant part, as follows:

Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [6] KB-1.277029-D. [7] See Complainant’s Exhibit A (All In One Invoice). [8] A.R.S. § 32-1154(A). [9] A.A.C. R2-19-119. [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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