ALJDEC decisions subject to certification as final

2015A-2892-ROC · Registrar of Contractors · 2016-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2016 and March 30, 2016 APPEARANCES: Vivian Morris (Complainant) appeared on her own behalf. Fidelis Garcia, Esq. represented Express Marble and Granite, LLC (Respondent). 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 Vivian Morris is the owner/occupant of a residence located at 7350 N. 22nd Street, Arizona 85020. 2. Respondent holds Arizona Contractor’s License No. 236056. 3. Complainant hired Respondent to install some granite countertops and backsplashes in her kitchen. After some problems arose concerning Respondent’s work, the Registrar was contacted. 4. The Registrar assigned one of its investigators, Steve Klein, to conduct a Building Confidence inspection on June 9, 2015 at 2:00 p.m. Respondent was not present at that inspection because Complainant indicated she did not want Respondent to attend. 5. During that inspection, Klein testified that he verbally told Complainant that he agreed with the items she was concerned about and advised her to file a formal Complainant with the Registrar. 6. On July 6, 2015, Complainant filed her complaint with the Registrar alleging that Respondent had performed poor work in her kitchen when installing granite countertops and backsplashes, leading to, among other items, damaged windows, uneven corners on granite, “thick and chunky” areas on the backsplash, a faucet that did not function properly, and an extra hole in the granite countertop. 7. Om July 21, 2015, Glenn Rapaj, owner of Respondent, wrote Klein a letter responding to the complaint and stating as follows: This in regards to the formal complaint that has been filed against us by Vivian Morris. We have attempted to address her issues and resolve the complaints but she did not allow us to do any work. I sent my installers to the repairs and Vivian Morris got very upset because my guys moved her sink faucet out of the way and she immediately kicked my guys out. Express Marble & Granite. LLC values honesty and integrity and we want all of our customers to be happy and satisfied with our work. I will be more than happy to fix any remaining issues, at this point she is the one not cooperating and not allowing me to go in and fix them. I do have witnesses and their information attached for proof that we went and tried to fix the issues and got kicked out. We would like to be allowed and given the opportunity to repair the items in question and have you be present if possible. Please let me know if there is any further action I can take. Thank you!

8. The Registrar assigned Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on September 1, 2015, and notified Complainant and Respondent of the time and place of the inspection. Respondent was not present at that inspection at Complainant’s request. Klein indicated that at the time of an inspection, he substantiated Complainant’s allegations. Specifically, Klein stated that he found that the granite sill plate was blocking the windows and preventing them from opening, that the granite had uneven corners, that the backsplash had a large patch inappropriate for newly installed granite, that the granite had an extra hole, that there was glue on the granite and that the dishwasher had not been attached. Klein indicated that the extra hole could be fixed with a cap and that the glue could be cleaned from the granite. 9. On September 1, 2015, Klein 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:

Complaint Item 1: Damaged windows making hard to open [and] windows cannot be removed.

Complaint Item 2: Granite installed with damaged corners and uneven back splash cuts.

Complaint Item 3: Back splash thick chunky and glue left on granite[.]

Complaint Item 4: No support trim for dishwasher and no trim applied under granite.

Complaint Item 5: Extra hole made in granite.

Complaint Item 6: Faucet can’t operate properly

Complaint Item 7: Glue on granite top.

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

10. The Directive stated that the above work had to be completed by 5:00 p.m. on September 17, 2015. Klein testified that he extended the deadline for the Directive because both Complainant and Respondent were telling him different stories of why the work had not been completed. He noted that Complainant said Respondent had not contacted her and Rapaj said Complainant had ignored all attempts by Respondent to contact her. 11. At hearing, Rapaj noted that it had sent Complainant a certified letter seeking access without response. On September 15, 2015, Respondent sent Klein and email detailing its difficulties contacting Complainant. Complainant said she had received an empty envelope by certified mail and telephoned Klein to see if he had received anything. She also submitted text messages evidencing her communications with Rapaj and attempts to have Respondent come and fix the issues listed in the Directive. 12. On September 18, 2015, Complainant and Rapaj both testified that Rapaj came to Complainant’s home. Rapaj said Complainant knew he would not be fixing anything that day because he did not have men with him or a truck. Instead, Rapaj believed they were just discussing what needed to be done. Complainant testified that she was very frustrated by the September 18, 2015 appointment because Respondent did not do anything despite having been directed by the Registrar to fix the listed items. 13. The parties also agreed that Rapaj came to Complainant’s home on October 29, 2015, this time with tools and removed the backsplash. Rapaj said he intended to take it back to the shop and cut it, but Complainant kicked him out and told him not to return. 14. The Tribunal listened to a recording of the parties’ interaction on October 29, 2015 that Complainant had recorded using an application on her cellular telephone. That recording revealed a heated discussion in which Mr. Rapaj repeatedly asked Complainant how he was supposed to fix the windows and Complainant told Rapaj to just do what he was going to do and then leave. After it became apparent that Rapaj was cleaning up without addressing many of the items noted on the Directive, Complainant told Rapaj to leave as it was clear that Respondent was not going to finish the corrective work specified in the Directive that day. 15. Later that same day, Rapaj telephoned Complainant who recorded that conversation as well. In the recording played at hearing, Rapaj stated he wished he had never taken the job for Complainant and would do whatever was necessary to resolve the matter. Complainant asked if Rapaj was willing to pay for another contractor to come in and redo the job. Rapaj responded that he would not pay for the entire job to be redone. Complainant told Rapaj to put whatever offer he was making in writing for her to consider. 16. That conversation was the last interaction between the parties. 17. On November 2, 2015, Klein performed a compliance inspection at Complainant’s home. He found that Respondent had removed one of the backsplashes but had otherwise not addressed the issues in the Directive. 18. Klein noted he returned to the Complainant’s home on March 17, 2016, for a prehearing inspection and found that the condition of her home was unchanged from the compliance inspection. Klein therefore forwarded the matter to the Registrar’s legal department for review. 19. 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.” 20. Complainant testified regarding her multiple attempts to have Respondent repair the issues in her kitchen before and after filing the complaint. She noted that Respondent never did so. 21. Rapaj testified that he has always been willing to fix the issues that led to Complainant’s dissatisfaction with the work Respondent performed in her home. He said that Respondent had been stymied in its attempts to do so by Complainant repeatedly throwing Respondent’s workers out of her home. He believed that given his access issues, Respondent should not be cited for its failure to comply with the Directive. Rapaj also noted that he wanted to recut the granite pieces in his shop before addressing the smaller issues such as cleaning the glue or filling in the extra hole with a cap. 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 Complainant’s home, including, but not limited to, installing a granite sill plate that blocked the windows and prevented them from opening, installing uneven corners on the granite, installing a large patch on the backsplash that was inappropriate for newly installed granite, making an extra hole in the granite, leaving glue on the granite and failing to attach the dishwasher. 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. Respondent argues that its failure to complete corrective work during the time period specified in the directive was due to Complainant’s failure to grant it access to her home to complete corrective work. 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).[2] The record reflects and Rapaj admits that Complainant granted him access to her house on at least two occasions after the complaint was filed and before Klein performed a compliance inspection. The Tribunal finds that Complainant’s grant of access on both September 18, 2015, and October 29, 2015, was reasonable and that as a matter of law Complainant did not have to provide Respondent any additional opportunities to come to her home and fix its workmanship issues. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Express Marble and Granite LLC.’s License No. 236056 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 18, 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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