ALJDEC decisions subject to certification as final

2015A-2162-ROC · Registrar of Contractors · 2016-04-01

HEARING: March 29, 2016 APPEARANCES: Lola Virginia Keller (Complainant) appeared on her own behalf. P.H. Drywall L.L.C. (Respondent) was represented by its owner, qualifying party and authorized representative, Pablo Hernandez. 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 4512 West Waltann Lane, Glendale, Arizona 86306. 2. Respondent holds Arizona Contractor’s License No. 271955. 3. On May 18, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work in her home leading to, among other problems, caulk and overspray on doors, the stain was removed from door trim during cleaning, painting issues, a broken light fixture, a broken front door, a broken fan, a lack of light and outlet covers, messy work outside, and problems with insulation. 4. The Registrar assigned investigator Jack Grimm to investigate the complaint. Grimm testified that he arranged to perform an inspection on June 30, 2015, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Grimm indicated that at the time of an inspection, he substantiated some but not all of Complainant’s allegations. Specifically, Grimm stated that he found overspray, caulking painting and drywall issues, a broken light fixture, lack of stain on a door trim, a mess left outside, and a lack of light switches and outlet covers. Grim testified he could not substantiate that Respondent was responsible for the front door, which was in a state of disrepair. Grimm did not recall discussing the issue of whether Respondent replaced the agreed- upon amount of insulation at the residence. 5. Grimm understood that Respondent attempted some repairs at Complainant’s home before he issued Respondent a Directive from the Registrar. 6. On July 15, 2015, Grimm 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. Caulk, Texture, Paint overspray on doors, closet trim tracks, New door trim. Remove and refinish if necessary all caulk, drywall texture and paint overspray that has been applied to areas that it does not belong.

2. Stain was removed from door trim when cleaned. Repair stained door trim.

3. Broken light fixture. Repair light fixture.

4. Entire walls with no paint, spots throughtout [sic], might be wrong color. No walls were observed without paint or appeared to be the wrong color, however some painted surfaces appeared to be thin or have holidays. Repair areas of ceiling that have inconsistencies in painting.

5. Texture patches visible, not matching, sanding lines. Repair inconsistencies in in drywall texture.

6. Textured, painted then caulked[.] Verify all caulked areas have been repainted.

7. Paint clogged drains, paint in flower bed, curbing on house outside, bath, kitchen. Cleanup any damage caused by workers spilling paint.

8. No light switch and outlet covers. Replace all removed switch and outlet covers.

7. The Directive stated that the above work had to be completed by 5:00 p.m. on July 31, 2015. 8. On August 10, 2015, Grimm performed a compliance inspection at Complainant’s home. He found that Respondent had not completed items numbers 1, 5, and 7 because overspray remained, there were still a drywall hole and inconsistent textures, and outlet covers were still missing. Grimm said he deemed the outlet cover issue complete because Complainant told him that she had replaced the covers in question. 9. During the compliance inspection, Complainant raised the issue of insulation and removed a vent for Grim to observe the insulation. Grim testified he could not make any determination regarding insulation because it was covered up. 10. Following the compliance inspection, Complainant informed the Registrar that she did not agree with Grimm that Respondent had completed certain items at her home. 11. On September 24, 2015, Grim returned to Complainant’s home with his supervisor for another inspection. Grimm testified that his supervisor recommended changing item #4 from complete to incomplete because he observed that the painting issues addressed by Respondent still had minor touch up issues. 12. Grimm did so and then forwarded the matter to the Registrar’s legal department for review. 13. On January 15, 2016, 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.” 14. Complainant testified that in her view the light switch cover and outlets were still an issue and had not been completed by Respondent. She maintained that Respondent had also failed to replace all the insulation in her home and that this insulation issue should have been included in the Directive. 15. Pablo Hernandez testified that most of his customers are happy with Respondent’s work and that Respondent has never had a complaint with the Registrar before. He noted that somebody was doing work on Complainant’s home before Respondent arrived and that her home had preexisting damage. Hernandez said that in response to the Directive, he fixed the problems he saw and hence believed that Respondent had complied with the Directive. Hernandez acknowledged that Respondent did not clean up the mess outside Complainant’s house. Hernandez denied that Respondent ever touched the light switches. He noted Complainant was told Respondent would remove the outlet covers. 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. Undisputed credible testimony established Respondent performed substandard work in Complaint’s home, including, but not limited to, overspray, caulking painting and drywall issues, a broken light fixture, removing stain from a door trim, leaving a mess outside, and a lack of light switches and outlet covers. Thus, Complainant established Respondent’s work on the items specified in the Directive 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] 4. An A.R.S. § 32-1154(A)(22) violation is warranted given that Respondent did not complete corrective work on all of the items specified in the Directive. Hernandez admitted that Respondent did not clean up the mess outside Complainant’s home. Grimm’s testimony established that Respondent also failed to fix all drywall holes, texture inconsistencies and caulking issues. Similarly, Respondent failed to adequately address painting issues as minor touch up problems remained upon inspection. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend P.H. Drywall L.LC.’s License No. 271955 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(E). 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, April 1, 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.”

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