ALJDEC decisions subject to certification as final

2015A-1060-ROC · Registrar of Contractors · 2016-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2016, with the record held open until January 27, 2016, to allow Complainant’s counsel time to submit a memorandum of legal authorities, APPEARANCES: Robert Beake (Complainant) was represented by Karen Williams, Esq. New Legacy Building and Design Incorporated (Respondent) was represented by its owner, qualifying party and authorized representative, Robert Swagerty (Swagerty). 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 is the owner/occupant of a residence located at 21242 North 80th Way, Scottsdale, Arizona 85255. 2. Respondent holds Arizona Contractor’s License No. 199643. 3. On March 9, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work throughout his home, including but not limited to, poor quality painting, incomplete woodwork, failure to protect hardwood flooring during construction resulting in permanent damage from glue, and ill-fitting fireplace cabinet doors that did not operate as intended. Complainant also provided a more detailed list of his complaints on March 25, 2015. 4. The Registrar assigned investigator Matt Gunstra to investigate the complaint. Gunstra testified that after speaking with both Complainant and Respondent he arranged to perform an inspection on April 8, 2015. Respondent declined to attend that inspection due to the bad feelings that had arisen between the parties. During the inspection, Complainant stated that he did not want Swagerty to return to the home. Gunstra indicated that at the time of an inspection, he substantiated a number of Complainant’s allegations. He indicated that he found that the wood floor had a “very large amount of spots” in multiple rooms. He was not able to determine what was on the floor, but assumed it was adhesive. He said the some of the spots were obvious while others were less so. Gunstra also found adhesive on the kitchen toe kick. Gunstra next viewed the paint in both the kitchen and master bathroom and believed the paint was thin in coverage and that a darker color could be seen coming through on the upper kitchen cabinets. Gunstra also saw paint coverage issues in the master bathroom along with nicks, chips and gaps. He likewise viewed a master bathtub where the caulking in the wood joints was cracking and paint was separated. Gunstra determined that this was not from use as Complainant had only moved back into the home in early February 2015. Gunstra attempted to operate the fireplace cabinet doors installed by Respondent but found that they did not operate as intended because he could not open them. Lastly, Gunstra saw problems with under-cabinet lights and wires exposed in the kitchen. 5. On April 10, 2015, Gunstra sent Respondent a Directive from the Registrar. 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. Wood flooring has multiple spots on it that appear to be adhesive or other residue from installation[.] 2. Kitchen toe kick has flooring adhesive on it[.] 3. Kitchen cabinet paint is thin on frames and backs of drawer fronts. Darker color of cabinet is showing through. Nicks, chips and gaps at wood joints should also be repaired as necessary. 4. Master bath drawer fronts have thin paint on back[.] 5. Master bath wood tub panel has thin paint on some areas, cracking or missing caulk at joints, and various paint repairs needed[.] 6. Wood filler under kitchen cooktop is rough and paint/caulk poorly applied[.] 7. New doors at the fireplace cabinet are difficult to open due to tight spacing against existing doors. Cabinet doors should be installed so they can be easily opened. 8. Under cabinet lights violate IRC E3802.3.2 and E3905.1. Wire junctions/splices in 120v lines must be protected by a junction box or other approved device. In addition, the NM cable is unprotected. Wires must be protected in areas susceptible to contact and/or damage by code. 9. Two holes drilled in lower frame of kitchen cabinets are not used. Damage shall be repaired by appropriate means. 10. Installation of new electrical (lights, receptacles, etc.) requires a permit issued by the City of Scottsdale. There is no record of a permit at this residence for this project. Respondent shall obtain the required permit/s and pass inspection.

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

6. The Directive stated that the above work had to be completed by 5:00 p.m. on April 28, 2015. 7. During the time allowed for compliance with the Directive, Swagerty advised Gunstra that he disagreed with many of if not all of his findings. He indicated that he was attempting several corrections and would inform Gunstra when the work was complete. Swagerty advised that Respondent completed corrective work at Complainant’s home on May 11, 2015. Respondent did have its painting subcontractor address some painting issues, but did not address the paint coverage issue because it believed its work met manufacturer’s standards. On May 11, 2015, Respondent submitted an email dated May 8, 2015, from Ben Sciolino, a representative of Dunn-Edwards paint that stated in pertinent part: To follow [are] my observations on the Beake residence complaint in Scottsdale, AZ.

Product performance and contractor application seem to be within specifications.

Nicks and chips are on the hard inside edge of the cabinet and appear to be normal wear and tear.

The discoloration in the single area of the face frame appears to have happened post application. It is not consistent with the finish on either side of the smudged area.

This may have been caused by a cleaning agent[.] 8. On May 12, 2015, Gunstra performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had made an attempt to correct some of the items in the Directive (aside from the paint issue detailed above), but that many of these corrections still fell below the Registrar’s minimum workmanship standards. For example, Gunstra found that while Respondent had attempted to clean some off the spots on the wood floor, other spots had not been addressed at all Gunstra noted that when Respondent cleaned the toe kick of adhesive, it had damaged the finish which was not up to standard. Gunstra indicated the fireplace door cabinets were in the same condition as before. He understood that Respondent had suggested the use of hardware to correct the issue, which Complainant had rejected because none of the other cabinets used hardware. Gunstra found that while the nicks and gaps in the master bathroom had been addressed, the paint coverage issue remained. In summary, issues remained concerning items 1,2,3,4, 6 and 7 of the Directive. At that point, he forwarded the file to the Registrar’s legal department. 9. On July 15, 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.” 10. At hearing, Gunstra testified to the above and added that on August 4, 2015, Swagerty called him, expressing surprise that he received a Citation. Gunstra explained the issues that he believed remained outstanding and Swagerty again expressed his disagreement. 11. William Barnhill testified on behalf of Respondent. He indicated that he had been the painting subcontractor on Complainant’s home and adamantly believed the work he had done was within standard. He denied the existence of a paint coverage issue and maintained that he had applied primer and two coats of paint. In his view, no dark color was coming through the paint and any difference in color was due to lighting. He noted the manufacturer’s representative, who did not attend the hearing, agreed with him. 12. Swagerty testified that he was not surprised that Gunstra found issues in the nature of a punch list given that the parties’ relationship had deteriorated and he had to leave Complainant’s home during the final inspection to avoid an altercation after Complainant became hostile. He characterized these items as “minor” given the scope of the project. He noted that he had not seen the items in question but assumed that Gunstra found floor spots, a finish issue with the toe kick, and other items his subcontractors had missed. He recalled his subcontractors informing him that Complaint was satisfied with their repair work and said he would have send the subcontractors back if Complaint was not happy. Regarding the paint, Swagerty said Gunstra had a difference of opinion and found it unfair that this difference of opinion resulted in a Citation. Regarding the fireplace doors, Swagerty did not remember the exact plan, but said his designer drew a picture. 13. Complainant testified that he paid Respondent in full so Swagerty would come do a final inspection of the property and that every time he or his wife raised a concern, they were told it was fine or was their problem. He said that he had attempted to address the floor spots using the recommendations of a reputable floor company, but had been only partially successful. He emphasized that the fireplace cabinet doors were not measured correctly and that he did not want to use hardware to open and close them. 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 leaving spots on Complainant’s wood floor, leaving adhesive on a toe kick, gaps, nicks and cracks in the master bathroom, problems with woodwork and ill-fitting fireplace door cabinets that did not operate correctly. The Tribunal also finds that Complainant has established a paint coverage issue that violated the workmanship standards. Gunstra offered credible evidence as to why the thin paint represented an issue of workmanship. Any contrary view by a disinterested third party was not subject to exploration or cross-examination and is discounted. 4. Thus, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).[1] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), Respondent was afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar. Respondent did attempt some corrective action, but not others, and so failed to comply even putting aside the painting issue. Complainant has therefore established cause for the Registrar to discipline the contractor’s license for a violation of A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend New Legacy Building and Design Incorporated’s License No. 199643 for a period of five (5) 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, February 11, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

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