ALJDEC decisions subject to certification as final

2015A-2147-ROC-rhg · Registrar of Contractors · 2016-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2016 APPEARANCES: Complainant Lucy Dale Benjamin was represented by Brad Weech. Mike Della Cerra, Qualifying Party and Officer, appeared on behalf of Respondent Network General Contracting Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Network General Contracting Inc. (Respondent) is the holder of License No. 256686 issued by the Arizona Registrar of Contractors (Registrar). On or about September 15, 2014, Complainant Lucy Dale Benjamin (Complainant) entered into a contract with Respondent to, among other things, install a bathroom cabinet, baseboard, wainscot, and remodel bedroom door casing and trim at Complainant’s home. As the project went on, additional items were added to the contract via change orders. The contract between Complainant and Respondent was a time and materials contract in which Complainant agreed to pay Respondent for materials and a set price per hour of labor. On or about May 15, 2015, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Ted Gerold. On or about July 23, 2015, after a jobsite inspection, Investigator Gerold issued a written directive to Respondent that provided 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) Complete the replacement of the front entry door including all hardware per the agreement. 2) Complete the 2nd bedroom door including all hardware per the agreement. 3) Complete the bath entry including drywall, paint, door, door tracks and hardware. 4) Reimburse complainant for any drape/curtain rods thrown away. 5) Ensure that all doors painted are painted with a smooth finish. Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent corrected those items listed as items 4 and 5 in the directive. At the time of the hearing, items 1, 2, and 3 were still unresolved. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(22). An initial hearing was held on February 9, 2016. At that hearing, Investigator Ted Gerold testified that at the jobsite inspection on July 16, 2015, he accepted the smooth finish on one of the doors and told Complainant that the paint finish was acceptable. Investigator Gerold testified that at the compliance inspection on September 22, 2015, Mr. Della Cerra stated he was waiting for Complainant to pick and have available new hardware necessary to install the front entry door and the bedroom door and Complainant stated she had done so. Investigator Gerold also stated that Mr. Della Cerra stated that he had hired someone else to complete the bath entry[1] in item 3, but Complainant had cancelled the work because the hardware was not available at the time the installation was to take place. Investigator Gerold indicated that at the compliance inspection, all three of the painted doors had a smooth finish in compliance with the Registrar’s standards. At that hearing, Mr. Della Cerra testified that, prior to the Registrar’s initial jobsite inspection, Complainant refused to accept the smooth finish on the first door despite Respondent’s multiple attempts to paint it to Complainant’s satisfaction. Mr. Della Cerra stated that Complainant’s refusal to accept the first door made it pointless for him to attempt to paint the remaining doors to a smooth finish as she was unwilling to accept the first door. Mr. Della Cerra indicated that Investigator Gerold found the first door was acceptable during the first jobsite inspection and that Complainant was then forced to accept the other doors during the compliance inspection. Mr. Della Cerra stated that he had someone scheduled to install the doors on July 31, 2015, but that on July 30, 2015, Complainant did not have the hardware present, so the installation had to be cancelled. Mr. Della Cerra testified that he understood the corrective work had to be completed by 5:00 p.m. on August 8, 2015, the deadline set forth in the Directive, and because the installation was not able to be completed by that date, he did not make any further attempts to comply with the Directive. Mr. Della Cerra stated that he tried on multiple occasions to get the project completed, but Complainant did not have the hardware available and the doors could not be installed without the hardware. Complainant testified that on or about April 23, 2015, Respondent placed a mechanics lien on her house, which made it impossible to refinance the property to obtain the funds necessary to pay Respondent for his work. Complainant stated that she had picked out the hardware the day after the jobsite inspection, but that the hardware was not delivered prior to August 9, 2015. Complainant stated that she accepted the smooth finish on the three doors on September 22, 2015, the date of the compliance inspection, but did not assert that she had accepted the smooth finish prior to that date. After the initial hearing, Complainant filed a motion for rehearing, which was granted. The rehearing was held on July 20, 2016. At the rehearing, Complainant admitted that Investigator Gerold accepted the smooth finish on the first door during the initial inspection and that she accepted, pursuant to Investigator Gerold’s findings, the two remaining doors at the compliance inspection. Complainant also acknowledged that as of the date of the rehearing, she did not have the proper hardware available for Respondent to install either door or the bath entry. Complainant indicated she had the improper hardware that she had paid for, but once opened, it could not be returned. Complainant then asserted that the wrong hardware she obtained was somehow the fault of Respondent, it was Respondent’s responsibility to pay for the replacement hardware that would allow for the installation to be completed. Complainant stated that she had selected the proper hardware and it was ready for Respondent to pick up, but did not point to any written agreement that Respondent was obligated to provide such hardware for the installation. At the rehearing, Complainant’s counsel argued that A.R.S. § 32-1154(A)(22) required that Respondent is still required to perform corrective work “within a reasonable period of time after receiving a written directive from the registrar.” Complainant’s counsel asserted that Respondent failed to perform the corrective work within the one year from the date of the Directive to the date of the rehearing, which is clearly not within a reasonable period of time. Mr. Della Cerra argued that A.R.S. § 32-1154(A)(22) goes on to state that “[t]he written directive shall set forth the time within which the contractor is to complete the remedial action” and that by setting the deadline of August 8, 2015, the Registrar established what was a “reasonable time” after receiving the written directive from the Registrar. Mr. Della Cerra also asserted that he had no part in Complainant picking out the improper hardware as that was a decision Complainant made with the supplier. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 9, 2016. Such prior License record reflects that Respondent’s License No. 256686 was first issued on July 6, 2009, and was suspended on August 1, 2015, for non- renewal. The Registrar’s public website indicates one prior complaint that had been resolved or settled by the contractor or withdrawn by the Complainant after issuance of a directive or formal citation. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 4. The credible evidence presented at hearing established that at the time of the complaint, there were items of Complainant’s project that needed to be completed. Specifically, the doors painted to a smooth finish needed to be accepted by Complainant, completed, and installed, including the bath entry. However, the evidence at hearing established that Complainant refused to accept the smooth finish on the first door that was later deemed acceptable by the Registrar at the initial jobsite inspection. Until Complainant accepted (or was informed the Registrar accepted) the finish on the first door, Respondent was unable to install any of the doors to Complainant’s satisfaction. 5. It was uncontested that Respondent had not installed the doors and bath entry as set forth in the parties’ contract as of the date of the rehearing due to Complainant’s failure to provide the hardware necessary for the installation. While Complainant testified that her failure to provide the hardware necessary for the installation was due to Respondent’s error, she did not establish that Respondent had any obligation to obtain the proper hardware under the contract. The weight of the evidence established that Complainant was required to provide the hardware necessary for the installation of the doors and bath entry and Complainant’s duty remained up to and including the date of the rehearing. Respondent was unable to complete the project until such a time as Complainant fulfilled that obligation, and Complainant failed to do so at any time prior to the rehearing. Therefore, Complainant failed to prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).[2] 6. As to the issue of poor workmanship, the evidence again established that Complainant refused to accept the smooth finish on the first door that was later deemed acceptable by the Registrar. Therefore, Complainant failed to establish that Respondent did not perform the work 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).[3] 7. As previously noted, Respondent finished the painting of the doors in a manner acceptable to the Registrar by the time of the compliance inspection. By Complainant’s own admission, the hardware for the installation of the doors was not available prior to August 8, 2015, the deadline included in the written directive from the Registrar. While A.R.S. § 32-1154(A)(22) requires a contractor to take appropriate corrective action to comply with a written directive within a reasonable period of time, it also provides that “[t]he written directive shall set forth the time within which the contractor is to complete the remedial action.” As the written directive issued in this matter set forth a deadline of compliance of 5:00 p.m. on August 8, 2015, that was the “reasonable period of time” by which Respondent was required to comply with the written directive. However, Complainant did not accept the smooth finish on the doors until the September 22, 2015, compliance inspection when Investigator Gerold stated the finish was acceptable and did not provide the hardware necessary for the installation of the doors and bath entry. As such, Complainant’s actions prevented Respondent from complying with the written directive within a reasonable period of time, the deadline set forth by the Registrar in the written directive. Because Respondent had valid justification for failing to comply with the written directive within a reasonable period of time, the deadline set forth by the Registrar in the written directive, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22).[4] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Lucy Dale Benjamin. 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, August 9, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The “bath entry” was a barn door on a sliding track door. [2] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [3] 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.” [4] 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. The written directive shall set forth the time within which the contractor is to complete the remedial action.” (Emphasis added).

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