ALJDEC decisions subject to certification as final

2014A-4377-ROC · Registrar of Contractors · 2016-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 2016, at 9:00 a.m. APPEARANCES: Tommy Nguyen (hereinafter “Complainant” or “Mr. Nguyen”) appeared on his own behalf. Nash Cleaning Corporation DBA: Quality Restoration 24 Hour Emergency Services (hereinafter “Respondent”) was represented by its attorney, Justin Castillo. A Vietnamese/English speaking interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) 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 Background and Procedure Respondent is the holder of License No. KB-2.164761-D. Respondent’s license was current on April 14, 2016. This is a residential matter where Respondent performed fire restoration work in Complainant’s residence located at 6649 S. Quail Vista Drive, Tucson Arizona 85756 (hereinafter the “residence”). Shortly after Respondent completed its construction work at Complainant’s residence, Complainant noticed several deficiencies in the construction work that Respondent had performed at his residence. When Respondent failed to correct the problems with its construction work to his satisfaction, the Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint and assigned Registrar Investigator, Mike Nieves, performed an onsite inspection at the residence. On January 12, 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. Complaint Item 2: Epoxy finish one coat on garage floor. The epoxy finish in the garage floor was not applied and is specified in the scope of work/contract. 2. Complaint Item 23: Carpet pad need replace. The carpet pad in the east, west bedrooms has separation at joints. Tack strip between entry and living room has protruding nails. 3. Complaint Item 24: Paint need touch repaint and drywall cracked. The paint in the middle bedroom, master bath shower and closet is not uniform. There are visible drywall cracks in the master bedroom, garage ceiling and above pedestrian door in garage.

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

Complainant asserted that Respondent had failed to comply with the written Directive and requested the Registrar to issue a Citation against Respondent’s license. On March 4, 3015, Investigator Nieves conducted an onsite compliance inspection at the residence. Investigator Nieves found that the Respondent had corrected Complaint Item Nos. 23 and 24 but that Respondent had failed to fully correct Complaint Item 2.[1] On July 2, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: 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]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[3]

Testimony The assigned Registrar Investigator, Arlo Houston (hereinafter “Investigator Houston”), testified that the first Registrar Investigator Mike Nieves had retired and that he had been assigned the case. Investigator Houston stated that he performed an onsite compliance inspection at Complainant’s residence on March 31, 2016. Investigator Houston said that Respondent had applied an epoxy finish to Complainant’s garage floor. Investigator Houston opined that Respondent had complied with the terms of the written Directive. Investigator Houston’s testimony is found to be credible. Mr. Nguyen testified that he did not agree that the items on his Complaint had been properly corrected. Mr. Nguyen stated that he was not happy with Respondent’s work and that he believed that Respondent owed him money. Mr. Nguyen said that Respondent had applied the epoxy coating on the garage floor but that the coating had failed and was now peeling. Christopher Wallace (hereinafter “Mr. Wallace”) testified that he was the project manager for Respondent for the construction work that was performed at Complainants’ residence. Mr. Wallace stated that all of the items set forth in the written Directive had been corrected by Respondent. Mr. Wallace said that he had instructed the Complainant to stay off of the new epoxy coating on the garage floor for at least 30 days to give the coating an opportunity to fully cure. Mr. Wallace said that Complainant disregarded his instructions and utilized the garage floor before the epoxy coating was fully cured. Mr. Wallace opined that any problems with the epoxy coating were the result of the homeowner using the garage before the epoxy had cured. Mr. Wallace’s testimony is found to be credible. Shandor Petrazzini (hereinafter “Mr. Petrazzini”) testified that he performed construction work at Complainant’s residence. Mr. Petrazzini stated that Complainant was happy with Respondent’s corrective work when the work was completed.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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. See A.A.C. R2-19-119. 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). Investigator Houston credibly testified that Respondent had complied with the terms of the written Directive issued in this matter. Mr. Wallace credibly testified that he had instructed the Complainant to stay off of the new epoxy coating on the garage floor for at least 30 days to give the coating an opportunity to fully cure. Mr. Wallace credibly stated that Complainant disregarded his instructions and utilized the garage floor before the epoxy was fully cured. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, April 14, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit No. R-22 (3/4/15 Onsite compliance inspection notes). [2] 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.

[3] A.R.S. § 32-1154(A)(22) provides 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.

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