ALJDEC decisions subject to certification as final

2014A-886-ROC · Registrar of Contractors · 2015-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2015 APPEARANCES: Complainant Ruth Gold appeared representing her own interests. Homes by Dwight L.L.C., was represented by its authorized representative, member and qualifying party, Dwight Davis. Steve Klein, an investigator with the Registrar of Contractors, provided testimony as a witness for the Complainant and Todd Knue testified on Respondent’s behalf. 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. 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 Ruth Geller Gold (Gold) is the owner/occupant of a residence located in Scottsdale, Arizona. 2. Respondent Homes By Dwight L.L.C. holds Arizona Contractor’s License No. B.188046-R. 3. On February 27, 2014, Gold filed a complaint with the Registrar of Contractors alleging that she had entered into a contract with Respondent, an entity with which she had previously worked, on July 5, 2013, to remodel various parts of her home. The complaint alleged that work began on July 20, 2013, and that shortly thereafter she began to notice problems including: (1) laminate flooring coming up, with some areas having corners or boards lifted, areas of ballooning and areas that ballooned where boards met; (2) a door to the exterior had openings where the air leaked in; (3) kitchen cabinets that did not match existing cabinets; and (4) concrete not being poured as originally agreed upon.[1] 4. In response to the complaint, the Registrar of Contractors assigned investigator Steve Klein to investigate these allegations. Klein testified that he arranged a time to perform an inspection and notified the Complainant and the Respondent of the time and place on the inspection. Both Respondent and Complainant were present at that inspection. Klein indicated that at the time of an inspection he substantiated two of Gold’s allegations regarding the condition of the laminate flooring and the exterior door. 5. On May 21, 2014, Klein sent Respondent a Directive from the Registrar of Contractors. 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:

Complaint #1) Laminate flooring coming up, some areas have corners and /or boards lifted, some areas have ballooned up (Expanded). Many areas are pealed where boards meet:

Complaint #2) Door to exterior has openings where air leaks in.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.[2]

6. Shortly thereafter, Davis contacted Gold to schedule repair of the floor and door in question. Neither party could remember the exact dates that Respondent attempted repairs of these items but email correspondence suggested that the repairs took place over a three-day period in July 2014. Both Knue and Davis testified the repair of the floor consisted of installing transition moldings or T-moldings as recommended by the manufacturer of the floor and providing room for the floor to expand.[3] Respondent also attempted repairs on the door and believed that its weatherproofing was successful. At the conclusion of the repair, Gold was advised that if the floor did not settle as the manufacturer believed that it would, Respondent would return and perform additional repairs. 7. Several weeks passed and the floor did not settle. Gold was also dissatisfied with how the door now looked. Gold contacted Klein to inform him that she was unhappy with the condition of these items and requested a follow-up inspection. 8. Klein testified that he performed a compliance inspection at Gold’s residence. He noted that Respondent was not invited to the follow-up inspection. He testified that on December 2, 2014, he found that while the door had been repaired it was not aesthetically pleasing and continued to fall below the minimum workmanship standards of the Registrar. Klein indicated that he inspected the condition of the floor at that time and found minor peaking throughout that was worse by the patio door. At that point, Klein forwarded the file to the Registrar of Contractors Legal Department for further processing and disposition. 9. Prior to the compliance inspection detailed above, Respondent learned via email that the repairs were unsatisfactory, and Davis requested that Respondent be allowed to perform additional work to address these issues. Instead, Gold engaged someone else to repair the door to her satisfaction and pursued her Registrar of Contractors complaint against Respondent. 10. Davis testified that he was not disputing that the floor fell below the Registrar’s minimum workmanship standards. He said the reason Respondent did not fix the floor was lack of access. 11. Gold maintained that she did allow Respondent access to her house to perform repairs but that personal issues prevent her from having someone continually come into her house. 12. On May 19, 2015, the Registrar of Contractors issued Respondent a Citation for Alleged Violation of Rule 4-9-108. That Citation contained only one charge, in particular: “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).”[4] The citation did not cite Respondent for failure to take corrective action. 13. In September 2015, Klein returned to Gold’s residence and observed that the floor appeared to be in the same condition as when he first inspected it and found that the floor still failed to meet the Registrar’s minimum workmanship standards. APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with a possible violation of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108, the workmanship rule). That statutory section requires that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154(A)(3). That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. CONCLUSIONS OF LAW 1. The Registrar of Contractors 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 that when Respondent installed the laminate floor in Complainant’s home, it did so in a manner that resulted in peaking of the floor and other problems. Likewise, the evidence showed that Respondent installed an exterior door in a manner that permitted outside air to come in. 4. Complainant established Respondent’s work installing her laminate floor and an exterior door 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.[5] 5. 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).[6] This section is inapplicable in this case because Respondent was not cited for failure to comply with a directive from the Registrar. Respondent was cited for its admittedly poor workmanship in installing the floor and an exterior door. But even if denial of access were an issue, I find that Gold allowed Respondent reasonable access by permitting repairs to be done over a three-day period in the summer of 2014. RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, Respondent's Arizona Contractor’s License No. B.188046-R shall be suspended for a period of three (3) days. 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 40 days from the date of the certification. Done this day, September 22, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibit A (the Registrar’s case file containing Complainant’s complaint) [2] See Exhibit A (Directive from the Registrar) [3] See Respondent’s Exhibit 1 (Shaw report and recommendation) [4] See Exhibit A (Citation dated May 19, 2015) [5] 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.” [6] 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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