ALJDEC decisions subject to certification as final

2014A-5222-ROC · Registrar of Contractors · 2016-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2015, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Tom Raine. Monroe Concrete coating and Remodeling LLC (hereinafter “Respondent”) was represented by its attorney, Paul A. Loucks. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3), 32-1154(A)(12), 32-1154(A)(16) and 32-1154(A)(22) as alleged and cited by the 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. CR61.280803-D issued by the Registrar. Respondent’s License is current. This is a residential matter in which on or about February 17, 2014, Kevin Deane Price (hereinafter “Mr. Price”) entered into a construction agreement with Respondent for the performance of construction work at Mr. Price’s residence located at 4541 N. Meadow Lane, Tucson, Arizona (hereinafter the “residence”). Respondent did not provide Mr. Price with a written contract. Instead Respondent provided Mr. Price with a written invoice and email.[1] The written email provides, in part, as follows: There is a single wire feeding the outlet in the backroom where we removed the wall unit. Technically I need to hire an electrician to handle moving that. I am comfortable with doing it myself if you are ok with that. I have the correct junction box to make it up to code and safe. Let me know if you would prefer I bring someone in.

During the course of construction Mr. Price became increasingly dissatisfied with Respondent’s workmanship at the construction project. The parties also disputed the terms of their construction agreement. On or about May 23, 2014, Mr. Price filed a Complaint against Respondent with the Registrar. Mr. Price alleged that Respondent had performed electrical work at his residence that was outside the scope of Respondent’s license. Mr. Price further alleged various items of deficient construction work and that Respondent had changed costs after the parties had entered into a construction agreement. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. On August 11, 2014, 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:

6. Complainant’s allegation: Workmanship was poor (Drywall). a. The drywall in the office wall has ridge, has visible seam in ceiling and wall at end of hallway does not lay flat. Workmanship was poor (Electrical) d. GFI on west exterior wall of office loose. Workmanship was poor (Cement overlay on Flooring) e. Cement overlay of flooring has areas that are not uniform. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective work.

Mr. Price asserted that Respondent failed to comply with the terms of the written Directive and requested that a citation be issued against Respondent’s license. On April 23, 2015, the Registrar issued a Complaint and Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Complaint and Citation contained four charges: 1: A violation of A.R.S. § 32-1154(A)(3) (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: A violation of A.R.S. § 32-154(A)(12)(Failure in any material respect to comply with this chapter. Specifically, A.R.S. § 32-1158(B).[2]

Charge 3: A violation of A.R.S. § 32-1154(A)(16) (Knowingly contracting beyond the scope of the license or licenses of the licensee). Charge 4: A violation of A.R.S. § 32-1154(A)(22) (Failure to take appropriate corrective action to comply 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).

Testimony Mr. Price testified that he contracted with Respondent for the remodeling of his residence. Mr. Price stated that Respondent acknowledged that it was not supposed to perform electrical work when the Respondent performed electrical work at his residence. Mr. Price said that there are numerous imperfections in the concrete overlay flooring work performed by Respondent and that the drywall work performed by Respondent is not straight. Mr. Price said that Respondent did not provide him with a written construction contract. Mr. Price acknowledged that he agreed to give the Respondent an extension of time to perform corrective work on his residence. Mr. Price testified that Respondent did perform corrective work on the drywall in his residence. Mr. Price stated that the drywall was still not satisfactory to him. Mr. Price acknowledged that Respondent performed corrective work on the concrete overlay flooring in his residence. Mr. Price testified that Respondent only performed corrective work on one square and the rest of the concrete overlay flooring has not been corrected. The assigned Registrar Investigator, Mike Nieves (hereinafter “Investigator Nieves”), testified that he had performed the onsite inspection for this matter. Investigator Nieves stated that there are areas of the concrete overlay on the flooring that still fail to comply with applicable workmanship standards and still require corrective action by Respondent. Investigator Nieves acknowledged that the type of cement overlay applied by Respondent is not a perfectly smooth product and that some minor inconsistencies are inherent in the overlay product. Investigator Nieves testified that there is a bow or ridge on the drywall in the office wall that still requires further corrective work by Respondent. Investigator Nieves testified that Respondent failed to provide Mr. Price with a written construction contract. Investigator Nieves stated that the written invoice and the email provided by Respondent failed to contain the minimum elements of a contract required by A.R.S. § 32-1158(B). Investigator Nieves testified that Respondent knowingly performed electrical work beyond the scope of Respondent’s license at Mr. Price’s residence. Mr. Nieves stated that all electrical work must be performed by a properly licensed electrical subcontractor. Investigator Nieves’ testimony is found to be credible. Britt Monroe (hereinafter “Mr. Monroe”) testified that he is the owner and qualifying party for Respondent. Mr. Monroe stated that he was not aware of the requirements for written contracts set forth in A.R.S. § 32-1158(B). Mr. Monroe said that he was now aware of the statutory requirements and that Respondent had taken action to prepare new contracts that complied with all statutory requirements. Mr. Monroe acknowledged that Respondent performed minor electrical work on Mr. Price’s residence and that the performance of electrical work is beyond the scope of Respondent’s license. Mr. Monroe testified that Respondent noticed that the walls in Mr. Price’s residence were not perfectly straight before Respondent performed any drywall work at the residence. Mr. Monroe stated that Respondent informed Mr. Price of the problems in the walls and kept him informed of the problems throughout the construction process. Mr. Monroe said that the actual drywall work performed by Respondent was within applicable workmanship standards and that the problem was caused by the framing in the residence. Mr. Monroe said that Respondent did not perform any framing work at the residence. Mr. Monroe testified that he informed Mr. Price of the mottling that was inherent in the concrete overlay material before any concrete overlay work was performed at Mr. Price’s residence. Mr. Monroe opined that the concrete overlay work at Mr. Price’s residence was within applicable workmanship standards. Mr. Monroe testified that Mr. Price was continually changing the scope of the construction project. Billy B. Monroe (hereinafter “Mr. B. Monroe”) testified that he is Mr. Monroe’s father and an employee of Respondent. Mr. B. Monroe stated that the walls in Mr. Price’s residence were bowed and crooked. Mr. B. Monroe opined that the drywall work performed by Respondent was good drywall work and that the problem was with the framing underneath the drywall. Mr. B. Monroe testified that variations in color and texture as well as mottling were inherent characteristics of the type of concrete overlay material applied by Respondent in Mr. Price’s residence. Mr. B. Monroe said that Respondent would be willing to go back and perform additional touch-up on Mr. Price’s concrete floor overlay. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] 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.[4] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Investigator Nieves credibly testified that there are areas of the cement overlay on the flooring that still fail to comply with applicable workmanship standards and still require corrective action by Respondent. Investigator Nieves stated that Respondent failed to provide Mr. Price with a written construction contract. Investigator Nieves stated that the written invoice and the email provided by Respondent failed to contain the minimum elements of a contract required by A.R.S. § 32-1158(B). Investigator Nieves testified that Respondent knowingly performed electrical work beyond the scope of Respondent’s license at Mr. Price’s residence. Mr. Monroe acknowledged that Respondent performed minor electrical work on Mr. Price’s residence and that the performance of electrical work is beyond the scope of Respondent’s license. The Registrar established by a preponderance of the evidence that Respondent’s workmanship at the construction project at Mr. Price’s residence failed to comply with applicable workmanship standards and that Respondent failed to comply with the terms of the Registrar’s written Directive. The Registrar also established by a preponderance of the evidence that Respondent knowingly performed electrical work at Mr. Price’s residence that is beyond the scope of Respondent’s license and that Respondent failed to provide the homeowner with at written contract that complied with the provisions of A.R.S. § 32-1158(B). This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32- 1154(A)(3), 32-1154(A)(12), 32-1154(A)(16) and 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. CR61.280803-D of Respondent shall be suspended for three (3) days. It is further recommended that Respondent pay the sum of $250.00 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 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 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 4, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit 2 (Complaint and attachments). [2] A.R.S. § 32-1158(B) provides as follows: From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

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

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