ALJDEC decisions subject to certification as final

2014A-4959-ROC · Registrar of Contractors · 2015-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2015 APPEARANCES: Ronald Nielson appeared on his own behalf. Due Brothers Construction, LLC (Respondent) was represented by its owner, qualifying party and authorized representative, Lance Due (Due). 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 Ronald Nielson is the owner/occupant of a residence located at 9415 North Third Avenue, Phoenix, Arizona 85021. 2. Respondent holds Arizona Contractor’s License No B-3.244008-R. 3. On December 8, 2014, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work throughout his home, including but not limited to, poor tile work involving excessive lippage, grout and the failure to adhere; problems with kitchen trim and cabinets; difficulties with a shower in that the shower drain was not placed at the lowest point; shower tiles were cracked; front and back doors that were hitting and not closing properly; baseboards were not properly painted; and spots of drywall and paint on surfaces. All told, the complaint contained in excess of 40 items. 4. Due indicated that he disagreed with Complainant about whether many of the complaint items were valid. He therefore decided to wait for an inspection to be done before undertaking any repairs. 5. The Registrar assigned investigator Timothy Pennington to investigate the complaint. Pennington testified that he arranged to perform an inspection on January 5, 2015, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Pennington indicated that at the time of an inspection, he substantiated 25 of Complainant’s allegations. He indicated that he found problems with the tile adhering, vertical edge exposed, excessive lippage, hollow spots beneath the flooring, and improper grouting in the home. He recalled Respondent having concerns that ordering new tile would take eight weeks and remembered telling Respondent he should order the tile right away and make this job a priority. He found numerous examples of work that fell below the minimum construction standards, including but not limited to, screws coming up on kitchen cabinets, problems with the shower seal, issues with the kitchen trim, front and back door issues, and drywall, grout, and paint spots left on surfaces. 6. During this inspection, Complainant identified six additional items of poor work that he had not included in his December 8, 2014 complaint. Pennington advised Complainant that he would need to amend his complaint before those items could be made part of an inspection and addressed. 7. Pennington drafted a Directive from the Registrar that he intended to be mailed to Respondent on that date. 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:

(1) Front door hits top and bottom, gapes uneven, top out, no threshold pan/caulking (2) Back door hits top and bottom, gapes uneven, top out, no threshold pan/caulking (3) Tile flooring numerous tiles exceed lippage limit of 1/32” entire house (4) Tile flooring numerous tiles not properly adhered entire house (hollows) (5) Tile flooring vertical tile edge exposed, uneven entire house (6) Shower drain not lowest point water pools away from drain (7) Shower window and alcove rough tile edge exposed sloppy grout

(8) Shower tile cracked at door way and chipped tiles (9) Cabinet doors need to be aligned hinges adjusted, fine tuned (10) Bottom door on storage cabinet near bath has warped door. (11) Base not installed in bedroom closets (12) Rough areas of casing and base board not smooth, properly painted (13) Front door not set properly (14) Screws holding hood vent are too long and damaged the cabinet

(15) Need aluminum floor plate for front security door (16) Paint on floor of front bed room entrance (17) Tile not covered by base several places front bedroom Tile chipped shows (18) Paint on floor in hallway (19) Base on S. wall of bath not painted this aperies to be grout on the base board (20) Cracks in caulking of casing and base board (21) Junk in paint left of wall of bathroom (22) Holes in doorjamb of bath room (23) Caulking or other material left on door frame at floor of bath room (24) Drywall material left on back of bath room door (25) Holes drilled in kitchen cabinets not filled /repaired

Correct by the appropriate means

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

8. The Directive stated that the above work had to be completed by 5:00 p.m. on February 18, 2015. 9. At the hearing, Pennington reviewed notes kept by the Registrar and discovered that the directive was not mailed to either Complainant or Respondent until February 2, 2015. Complainant testified that he received the directive on February 6, 2015. Due testified that Respondent did not receive the Directive until February 10, 2015, leaving only eight days for compliance and corrective work. 10. Due recalled contacting Complainant and arranging a time to perform repairs. Due said he had attempted to fix what he could accomplish in that short period of time. He noted he had contacted the Registrar and been advised by Jeff Flake, Pennington’s supervisor, that he should not attempt to fix what he could not complete by February 18, 2015. Complainant recalled that Respondent spent only three hours at his home repairing inexpensive problems and then left. 11. It is undisputed that Respondent never reordered the tile necessary to make repairs to the tile in Complainant’s home. 12. On February 25, 2015, Pennington performed a compliance inspection at Complainant’s home. At that time, he found that respondent had corrected items 9, 14, 16, 18, 19, 20, 21, 22, 24 and 25 in the directive. He testified that item number 22 had been poorly corrected and remained below workmanship standards and that Respondent was not permitted by Complainant to correct the problem of the hole being drilled into a kitchen cabinet. Pennington specified that the remaining items not listed as corrected had not been addressed by Respondent. 13. In March 2015, Pennington conducted an inspection meant to cover the six additional complaint items that Complainant had added to the complaint. He substantiated each of these items. 14. On March 26, 2015, Pennington sent another Directive from the Registrar to Respondent. The Directive stated in pertinent part that: 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. Crown trim at top of cabinet gaps, kitchen and linen closet. 2. Caulking of baseboards smeared onto walls and wall not repainted. 3. Shower-Sealer left on shower tile and dried-will not come off. 4. Shower -excessive lippage 14 tiles in shower. 5. Shower-grout not properly applied in shower-tiles edge exposed. 6. Attic hatch not insulated.

Correct by the appropriate means

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

15. Respondent testified he received this directive in a timely manner, but “decided not to do anything” because he believed the six items contained therein were connected to the original complaint for which time was expired. He said this was so even though the directive contained a new completion date of 5:00 p.m. on April 2, 2015. 16. Pennington performed a compliance inspection with regard to this directive on April 6, 2015. He found that none of those items had been addressed. At that point, he forwarded the file containing both directives to the Registrar’s legal department. 17. On May 26, 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. 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.” 18. Respondent vehemently disputed the merits of the charges contained in the Citation. He argued that it was always his intention to correct any deficiencies of workmanship and that he was prevented from doing so by the Registrar’s late mailing of the January 6, 2015 directive. When shown pictures of certain tile work, he did concede that the particular photograph shown involved poor workmanship. He blamed the Registrar for failing to follow its own process and for not being descriptive enough in how the poor workmanship should be corrected. 19. Complainant indicated that it had been a struggle to convince Respondent that any of its work involves poor workmanship and that even once the Registrar had agreed, Respondent only performed corrective work that was easy and inexpensive. 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. To warrant such sanctions by the Registrar, Complainants 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). 3. Undisputed credible testimony established Respondent did work of questionable quality in Respondent’s home, including poorly installed tile that suffered from excessive lippage and failure to adhere, raising the potential for tripping hazards and resulting in hollow spots on the floor. Respondent conceded when shown photographic evidence that in that instance, the grout was excessive. Pennington offered uncontroverted evidence of problems that existed throughout Complainant’s home (in the shower, attic, kitchen, etc.); each of these problems standing alone is evidence of poor work. 4. Thus, Complainant established Respondent’s work on the 31 items included in the Directives was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[2] Respondent raised valid concerns that the late mailing prevented it from having a meaningful opportunity to correct its work. Had the original directive been mailed on the date Pennington anticipated, Respondent would have had in excess of days to complete the 25 items in question; it had only 16 days from the date of first mailing and even less from the date of receipt. Accordingly, the Tribunal finds that the January 6, 2015 directive should not, under the facts of this case, form the basis of an A.R.S. § 32-1154(A)(22) violation. 6. An A.R.S. § 32-1154(A)(22) violation is, however, warranted given Respondent’s utter failure to take any steps to correct the poor work that was the subject of the March 16, 2015 directive. Due’s testimony that he believed the items related to the original complaint and that Respondent had no more time to fix them, is not credible. The March 16, 2015 directive gave Respondent until April 2, 2015, to correct these issues, yet Respondent deliberately decided not to take any corrective action on this items. This deliberate inaction is the very definition of a violation for failure to comply with a directive from the Registrar. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Due Brothers Construction, LLC’s License No. B-3.244008-R for a period of fifteen (15) 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(D). 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, November 12, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] 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.” Emphasis added.

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