ALJDEC decisions subject to certification as final

2014A-4331-ROC · Registrar of Contractors · 2016-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 7, 2016 APPEARANCES: Complainant Vision Graphics appeared through its former owner and president, Linda Enright. No one appeared for Respondent Del Duca Development, LLC. 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 Vision Graphics is occupant of a building/business located at 19621 N. 23rd Drive, Phoenix, Arizona 85008. 2. Respondent holds Arizona Contractor’s License 280882. 3. On October 23, 2014, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when doing tenant improvements on a building to which Complainant moved its printing business. Specifically, the complaint specified that Respondent failed to complete its punch list and that, as a consequence, numerous issues remained to be fixed at Complainant’s new place of business. All told, the complaint contained 125 items. 4. The Registrar assigned investigator Steve Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on December 16, 2014, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Klein indicated that at the time of an inspection, he substantiated 35 of Complainant’s allegations including issues with drywall and painting, which accounted for 75 percent of the 125 complaint items, issues with plumbing and electrical work, damaged tiles and problems with insulation. Klein recalled that at the time of the jobsite inspection, Respondent agreed to fix all issues, except for the insulation which Respondent felt another contractor had damaged. Klein informed Respondent that, as the general contractor on the project, it would be responsible for the other contractor’s work. Klein noted that Respondent brought all its subcontractors to the inspection, but that Complainant did not allow all the subcontractors to attend the inspection for fear of creating a circus-like atmosphere in its workplace. Klein indicated he knew of no other access issues that arose between Complainant and Respondent. 5. On February 5, 2015, Klein sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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:

C’s Complaint #2 — Seat any missing tiles, etc. • Ceiling tiles

C’s Complaint #7 — Final paint touch up - all areas • Respondent agreed to a general final paint touch up.

C’s Complaint #11 — Check operation function of ALL occupancy sensor switches in ALL offices. • Respondent’s subcontractor agreed to check.

C’s Complaint #12 — Check all outlets to ensure in good working condition. Specifically – women[‘]s restroom, pre-press NW corner, outlet at red shelf (SE wall). • Respondent’s subcontractor agreed to check.

C’s Complaint #14 — Paint around ALL doors as installed in field. • Respondent agreed to a general final paint touch up.

C’s Complaint #18 — Replace ceiling tile in NW corner due to slice.

C’s Complaint #19 — Re-sand/patch/paint all walls • Respondent agreed to a general final paint touch up.

C’s Complaint #20 — Patch and paint wall west of entry door to #101 • Respondent agreed to a general final paint touch up.

C’s Complaint #29 — Repair damage at strike of door within office. • Door latch was poorly set.

C’s Complaint #30 — Patch and paint behind door within office • Respondent agreed to a general final paint touch up.

C’s Complaint #49 — Patch and paint at HVAC unit shut off. • Respondent agreed to a general final paint touch up.

C’s Complaint #50 — Patch and paint outside corner #113 in hall • Respondent agreed to a general final paint touch up.

Office #106

C’s Complaint #51 — Patch and paint behind door • Respondent agreed to a general final paint touch up.

C’s Complaint #52 — Touch up paint at sill at glazing - SW corner • Respondent agreed to a general final paint touch up.

C’s Complaint #53 — Touch up paint, center of all walls • Respondent agreed to a general final paint touch up.

C’s Complaint #54 — Chip in ceiling tile, center of room by door.

Office #107

C’s Complaint #55 — Patch and paint at switch • Respondent agreed to a general final paint touch up.

C’s Complaint #56 — Paint door - hall side • Respondent agreed to a general final paint touch up.

Office #108

C’s Complaint #57 — Touch up paint at sill and wall below • Respondent agreed to a general final paint touch up.

Office #110

C’s Complaint #61 — Touch up paint at door and on south wall • Respondent agreed to a general final paint touch up.

C’s Complaint #62 — Paint around frame (typical) • Respondent agreed to a general final paint touch up.

C’s Complaint #63 — Touch up paint on east wall north of door • Respondent agreed to a general final paint touch up.

Pre-printing #111

C’s Complaint #65 — Patch and paint at switch and wall left of door • Respondent agreed to a general final paint touch up.

C’s Complaint #66 — Remove paint on grid above door - 5’ in room • Respondent agreed to a general final paint touch up.

C’s Complaint #67 — Patch and paint at all outlets on west wall. • Respondent agreed to a general final paint touch up.

C’s Complaint #68 — Patch and paint - furr out column at exterior and fully cover existing open condition at column/conduit. • Respondent agreed to a general final paint touch up.

C’s Complaint #69 — Touch up paint at NE corner of wall • Respondent agreed to a general final paint touch up.

C’s Complaint #70 — Touch up paint at conduit east wall • Respondent agreed to a general final paint touch up.

Digital Printing #113

C’s Complaint #75 — Paint or remove orange paint on ceiling return. • Respondent agreed to a general final paint touch up.

Break room #114

C’s Complaint #80 — Touch up paint and install blank plate at NE corner. • Respondent agreed to a general final paint touch up.

C’s Complaint #81 — Patch and paint center of north wall • Respondent agreed to a general final paint touch up.

Hallway #115

C’s Complaint #82 — Chip in ceiling tile, above fountain

Women’s #116

C’s Complaint #84 — Patch and paint at trash/sink counter and edge of tile, full height of wall • Respondent agreed to a general final paint touch up.

Men’s #117

C’s Complaint #89 — Patch and paint at trash/sink counter and edge of tile, full height of wall • Respondent agreed to a general final paint touch up.

Loading area #120

C’s Complaint #106 — Patch insulation at north HVAC unit

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

6. The Directive stated that the above work had to be completed by 5:00 p.m. on February 27, 2015. 7. On April 28, 2015, Klein received a telephone call from Bart Del Duca of Respondent, who told him that Respondent has never been back to Complainant’s workplace to do corrective work. Based on this information, Klein did not perform a compliance inspection, and simply forwarded the file to the Registrar’s legal department for review. 8. On July 17, 2015, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.” 9. Lynne Enright testified that Complainant entered into a contract with Respondent on June 11, 2014, for Respondent to build out tenant improvements for Complainant’s printing business. She indicated that Respondent knew Complainant had a firm move-in date, but failed to complete the punch list. Enright said that she had sold Complainant, but understood that most of the workmanship items mentioned in the complaint remained an issue. She stated that Respondent had made no effort to come to Complainant’s workplace and correct the issues during or after the time period specified in the Directive. Enright denied that Respondent was denied access to Complainant’s workplace to perform corrective work. 10. Robert Goodwin, Complainant’s General Manager, testified that Complainant addressed some of the workmanship issues on its own, such as the tile, but other issues remain to be fixed. 11. Klein testified that he performed a prehearing inspection on March 4, 2016, and determined that while the tile and electrical work had been completed, the other workmanship items remain unchanged. 12. Respondent did not appear at hearing and did not request to appear telephonically. The Minute Entries continuing the hearing to April 7, 2016, and then changing the date to March 7, 2016, due to a Scrivener’s error, were mailed to Respondent’s address of record. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 13. In Respondent’s written answer to the citation, Respondent denied committing poor workmanship, but agreed that Complainant’s workplace contained work that was unfinished. Respondent challenged Enright’s continued involvement in this matter given the sale of Complainant and accused Complainant of breach of contract for alleged failing to make progress payments. Respondent did not argue that access was an issue in its answer.

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. The Amended Minute Entry—Granting Continuance mailed to Respondent’s address of record was reasonable, and Respondent is deemed to have receive notice of the hearing. See A.R.S. §§ 41- 1092.04; 41-1062(A). 3. 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). 4. Undisputed credible testimony established Respondent performed substandard work on a number of items, including but not limed to, drywall and painting issues, door hardware issues, plumbing issues, damaged tile, electrical issues and problems with insulation. Thus, Complainant established Respondent’s work on these items specified in the Directive was not done 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).[1] As a general contractor, Respondent is responsible for work or damage done by its subcontractors. 5. An A.R.S. § 32-1154(A)(22) violation is warranted given that Respondent failed to perform corrective work of any kind during the time set forth in the Directive. No evidence in the record supports that Respondent attempted to access Complainant’s workplace during the time period specified in the Directive. Indeed, Respondent’s communication with Klein establishes that Respondent did not return to do any corrective work for Complainant after the Directive issued. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 280882 for a period of five (5) 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(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, March 24, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.””

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826