ALJDEC decisions subject to certification as final

2014A-77-ROC · Registrar of Contractors · 2016-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2016, at 8:00 a.m. APPEARANCES: Diana L. Gignac (hereinafter “Complainant” or “Ms. Gignac”) was represented by her attorney, Michael Rogers, Esq. Countertop Creations Inc. (hereinafter “Respondent”) failed to appear. 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 Respondent is the holder of License No. CR60.136036-D and License No. CR60.136035-D. Respondent’s licenses are current as of March 2, 2016. This is a residential matter in which on or about November 14, 2013, performed construction work in Complainant’s residence located at 1321 W. Shellfish Drive, Gilbert, Arizona 85233 (hereinafter the “residence”). Shortly after Respondent completed its construction work at Complainant’s residence, Complainant found that the holes for the plumbing fixtures in the master bath vanity granite countertop were installed in the wrong location which caused the drain handles to be too close to the back-splash for the drain handles to work properly. Complainant also found that the Respondent had left green filmy spots on the countertop. When Respondent failed to correct the problems with the countertop Complainant 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 Complainant’s residence. On February 19, 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:

1. After Respondent cleaned the master bath vanity granite countertop, some green filmy spots appeared. Contractor to correct. 2. Respondent did not cut the holes out for the plumbing fixtures far enough away from the backsplash causing the drain handles to be too close to the backsplash and unable to work properly. Contractor to correct.

Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. 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 three 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).[1]

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

Ms. Gignac testified that Respondent had made no effort to correct the problems with her master bath vanity granite countertop, despite the written Directive issued by the Registrar. Ms. Gignac stated that she had spent many hours locating replacement countertops at Respondent’s suggestion and that despite her efforts Respondent continually failed to do anything in response to the written directive. Ms. Gignac said that the holes were cut in the wrong location in the countertop and that there is a green filmy substance on the countertop that cannot be removed. Ms. Cignac said that she was unable to remove the green filmy substance from the countertop. Ms. Cignac’s testimony is found to be credible. The assigned Registrar Investigator, Theodore Gerald (hereinafter “Investigator Gerald”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Gerald said that Respondent’s construction work at Complainant’s residence failed to meet minimum workmanship standards. Investigator Gerald testified that he performed a compliance inspection at Complainant’s residence on August 10, 2015. Investigator Gerald stated that Respondent has performed no corrective action on Complainant’s countertop. Investigator Gerald said that countertop requires complete replacement. Investigator Gerald’s testimony is found to be credible. 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). Complainant established by a preponderance of the evidence that Respondent. Complainant established that Respondent failed to comply with the Registrar’s written Directive. This Tribunal concludes 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 commencing on the effective date of the Registrar’s Order, License No. CR60.136036-D and License No. CR60.136035-D of Respondent shall both be suspended for twenty (20) days. 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, March 2, 2016.

/s/ M. Douglas 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 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.

[2] 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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