ALJDEC decisions subject to certification as final

2015A-1271-ROC · Registrar of Contractors · 2016-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 24, 2015 APPEARANCES: Elizabeth Parrini (Complainant) appeared on her own behalf. Elle Ryan Contracting, LLC (Respondent) was represented by its qualifying party and managing member, Andrew Mosher. 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 Elizabeth Parrini is the owner/occupant of a residence located at 14227 N. Tumblebridge Way, Sun City, Arizona 85351. 2. Respondent holds Arizona Contractor’s License No. 278152. 3. On March 19, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work when remodeling her home. All told, the complaint contained items. 4. The Registrar assigned investigator Timothy Pennington to investigate the complaint. 5. Pennington scheduled a jobsite inspection for April 7, 2015, which both Complainant and Respondent attended. Pennington testified that he substantiated some, but not all of the workmanship issues. He also found that Respondent had failed to pull the necessary permits for Complainant’s pergola and water heaters. 6. On April 8, 2015, Pennington 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. Uneven tile floor in kitchen. 2. Uneven tile backsplash tile above stove. 3. Barn door crooked and hard to slide. 4. Thick grout on exterior threshold laundry room doorway. 5. Did not install outside plug as per contract. 6. Shower tile a mess. Thick grout everywhere. Ceiling, walls, shower walls, floor and toilet. 7. Uneven shower pan. Have to squeegee water to drain. 8. Master bath ceiling a mess where old light fixture was removed. Didn’t secure new light fixture to wall. Drywall splattered on wall and new light fixture. 9. Didn’t put screen door latch on. Didn’t put down new tack strip or pull the carpet to the new door frame. Left a 1.5 inch gap between door and carpet. 10. Didn’t attach screen door latch to new patio door in den. 11. Pergola. There is some question as to how the pergola is attached to the roof or even if it’s attached at all. 12. Half bath baseboard not complete. Large gaps. 13. Toilet bolt showing and no caulking at base. 14. No permit to relocate water heater or Pergola.

Correct by the appropriate means

7. The Directive contained a completion date of April 24, 2015, at 5:00 pm. During the time period specified in the complaint, Respondent met with the Complainant but did not attempt corrective work. 8. On May 11, 2015, Pennington performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had failed to perform any corrective work on the items contained in the Directive. He therefore forwarded the file to the Registrar’s Legal Department for review. 9. On July 9, 2015, the Registrar issued Respondent a Citation. That Citation contained three charges. Charge 1 referenced “Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” Charge 2 reflected “[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 3 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. Andrew Mosher admitted on the record that all of the charges in the Citation were warranted. Specifically, he indicated he did not pull the correct permits for the pergola or water heaters, that the workmanship deficiencies in the April 8, 2015 Directive existed, and that he did not perform corrective work because he and Complainant could not agree on what to do. Mosher agreed that Complainant did not deny him access to her home. 11. Complainant testified that after the Directive issued, she met with Mosher to discuss corrections. She said that she asked that he immediately address the small problems with Respondent’s workmanship in an effort to show good faith, but he refused. Thereafter, Respondent made no effort to correct its work. 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, Complainant 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. Respondent conceded that he failed to pull required permits. Undisputed credible evidence in the file and confirmed by Pennington at hearing established that these permits were required and that the failure to pull these permits was prejudicial to Complainant. Accordingly, Complainant has met her burden to prove a violation of A.R.S. § 32-1154(A)(2).[1] 4. Undisputed credible evidence contained in the Registrar’s file established Respondent did work of questionable quality in Respondent’s home. Respondent admitted that these workmanship deficiencies existed. 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).[2] 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).[3] An A.R.S. § 32-1154(A)(22) violation is appropriate here given Respondent made no effort to correct the multitude of workmanship issues it has now admitted existed. Nor did Respondent obtain the requisite permits for its work on Complainant’s water heaters and pergola. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Elle Ryan Contracting, LLC’s License No. 278152 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, January 12, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [2] 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.” [3] 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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