ALJDEC decisions subject to certification as final

2015A-2919-ROC · Registrar of Contractors · 2016-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2016, at 1:00 p.m. APPEARANCES: William Wawrzyniak (“Complainant”) appeared telephonically on his own behalf; Guy Muha DBA: A to Z Improvements (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On January 23, 2010, the Registrar issued License No. CR61.262283- D for dual carpentry, remodeling, and repair to Respondent. 2. On or about July 7, 2015, Complainant filed a complaint with the Registrar, alleging generally that Respondent had performed poor work on its contract to change the bathtub to a shower and to install tile in the bathroom and laundry room at Complainant’s condominium at 1957 Mesquite Ave. #40, Lake Havasu City, Arizona 86406. 3. The Registrar assigned the complaint to its Investigator, Cliff Corlett (“Investigator Corlett”), for investigation. Investigator Corlett performed a jobsite inspection and on September 24, 2015, issued a Directive to Respondent to perform certain repairs on or before 5:00 p.m. on October 16, 2015. The Directive required Respondent to correct missing tile grout and voids, cracked tile, tiles that were not properly spaced and had varying grout line thickness, water leaks from cracks in grout, missing silicone caulk around the shower door, the shower dam that had not been constructed properly, the soap dish that was not properly grouted and had cracked tile, the shower floor tiles that had cracked grout and voids, the shower valve that had been installed without a scald limit, and tiles that were over-cut and under-cut and did not fit properly. 4. In the September 24, 2015 Directive, Investigator Corlett noted that with respect to the shower dam that was improperly constructed, “[i]n addition to the onsite meeting I contacted the Lake Havasu Building Department and was advised that because Respondent broke and relocated the underground waste water drain line, . . . this project required a permit.”[1] Respondent had not obtained a permit for the job. Investigator Corlett also noted that he could not verify whether Respondent had installed a shower pan. 5. In the September 24, 2015 Directive, Investigator Corlett noted numerous times that he “[found] so many things wrong with this shower and floor tile installation that [he] believe[d] the only way to properly correct all of the sub-standard workmanship would be to completely remove and replace the entire shower and floor tile project.”[2] 6. After Respondent did not correct the workmanship deficiencies, Complainant requested a hearing. The Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32- 1154(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 7. Respondent filed a timely answer to the Citation, stating that he had attempted to schedule a time to correct its work on Complainant’s project, but that Complainant had not responded to the attempts, and that Respondent had attempted to reach a cash settlement by offering the amount of money that it would have cost Respondent to repair the work, but that Complainant had not responded to the offer. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. An evidentiary hearing was held via video conference from the Registrar’s Flagstaff office on January 25, 2016. Complainant submitted three exhibits, testified on his own behalf, and presented the testimony of Investigator Corlett. Respondent submitted two exhibits and testified on his own behalf. Hearing Evidence 9. Investigator Corlett testified consistently with the September 24, 2015 Directive. 10. Investigator Corlett testified that although Respondent said he had installed a shower pan in the bathroom, there was no proof. Investigator Corlett testified that both parties were hostile to each other at the jobsite inspection and that due to the level of animosity, he suggested that Respondent should resolve the complaint through a financial settlement. Investigator Corlett reiterated that due to the extent and severity of Respondent’s workmanship deficiencies, Investigator Corlett believed that it would be necessary to remove Respondent’s work and start anew on the project. 11. Complainant testified that because he did not trust Respondent, Complainant did not allow Respondent to schedule repairs after the September 24, 2015 Directive. 12. Investigator Corlett testified that after the September 24, 2015 Directive, he contacted Complainant, who said that Respondent had not done anything on the project. Inspector Corlett testified that after he spoke to Complainant, he referred the complaint to the Registrar’s Legal Department. 13. The property where Respondent performed the work is a condominium that Complainant rents to winter visitors. Respondent testified that after water damaged the condominium, he contracted to repair the water damage and to convert the bathtub to a shower. Respondent testified Complainant did not allow Respondent to perform repairs to comply with the September 24, 2015 Directive because tenants were living in the condominium. 14. Respondent testified that although a permit is technically required to relocate a drain, the Lake Havasu City Building Department never issues such a permit. 15. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on January 21, 2016, Respondent’s license was current and this appears to be the only complaint pending against the license. Respondent’s license was administratively suspended for non-renewal between February 1, 2012, and March 19, 2012, and between February 1, 2014, and March 24, 2014. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[7] 4. Complainant established by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(2)[8] because Inspector Corlett’s testimony established that moving the wastewater line on the project required a permit and Respondent failed to obtain a permit before performing work on the project. Because Respondent did not obtain a permit, the Lake Havasu Building Department did not inspect the project and it is not clear on this record whether Respondent installed a shower pan. 5. Complainant established by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A) (3),[9] namely A.A.C. R4-9-108,[10] in the numerous respects identified on the September 24, 2015 Directive. 6. Although Respondent failed to perform corrective work to comply with the September 24, 2015 Directive, Complainant candidly admitted at the hearing that he refused to allow access for Respondent to perform corrective work. Although Complainant’s refusal to allow access may have been justified by the extent of Respondent’s workmanship deficiencies on the project, Complainant’s refusal constitutes a legal excuse for Respondent’s failure to comply with the Directive. Therefore, Complainant did not establish by a preponderance of the evidence cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).[11] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. CR61.262283-D of Respondent Guy Muha DBA: A to Z Improvements shall be suspended for a period of seven calendar days. 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 five days from the date of that certification. Done this day, January 28, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Complainant’s Exhibit 1 at 4. [2] Complainant’s Exhibit 1 at 1, 2 (twice), 3 (twice), 4 (twice), 5, and 6. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] 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 any state or any political subdivision of the state in any material respect which 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.” [9] 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.” [10] 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.” [11] 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.”

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