ALJDEC decisions subject to certification as final

2015A-3983-ROC-rhg · Registrar of Contractors · 2016-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marie April White,

COMPLAINANT,

Creta Universal Construction LLC,

License No. CR60.297219-D

RESPONDENT.

No. 2015A-3983-ROC-rhg

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 2, 2016, at 8:00 a.m., October 31, 2016, at 1:00 p.m., and November 8, 2016, at 10:00 a.m.

APPEARANCES: Marie April White (“Complainant”) was represented by Mark Molique, Esq., Molique Law, PLLC; Creta Universal Construction LLC (“Respondent”) was represented by John G. Ryan, Esq., Ryan Rapp & Underwood, PLC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 10, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR60.297219-D for dual finish carpentry to Respondent. Respondent’s CR60 license allows it to install or repair millwork such as cabinets, counter tops, case sash, door trim, metal doors, automatic door closers, and wood flooring.

On or about September 18, 2015, Complainant filed a complaint with the Registrar, alleging that Respondent had failed to obtain a permit and had performed poor work on its contract to convert a powder room into a full bathroom with a shower and to install laminate flooring at Complainant’s house at 2408 E. Palm Beach Dr., Chandler, Arizona 85249. Complainant alleged that she had paid $10,450.00 of the $11,975.00 contract amount.

The Registrar assigned the complaint to its Investigator, Ted Gerold. On November 3, 2015, Investigator Gerold performed a jobsite inspection. On November 9, 2015, Investigator Gerold issued a Directive to Respondent to perform certain repairs to nineteen complaint items on or before November 25, 2015, at 5:00 p.m. The Directive also required in relevant part as follows:

If your license 297219 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If any workmanship violations listed above are designated as outside the scope of your license then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

Respondent failed to resolve the complaint to Complainant’s satisfaction and she requested a compliance inspection. On January 7, 2016, Investigator Gerold performed a compliance jobsite inspection. Inspector Gerold determined that Respondent had complied with seven of the nineteen items on the Directive, but that one item required additional work, and that two items were withdrawn, in relevant part as follows:

1) Ensure that all local building authority inspections have been passed on this project including the final inspection.

Contractor is NOT in compliance.

. . . .

3) Secure transition strip at hall bath entry and clean and properly re-caulk strip to door jambs.

Contractor secured the transition strip but in connection with Item#15 on the Written Directive the door assembly is still crooked.

4) Extremely poor caulking of floor to sliding glass door threshold.

Contractor is NOT compliance. Still poor caulking at the door threshold and layout lines still present on the flooring. . . .

. . . .

8) Poorly cut trim piece above closet door.

Contractor is NOT in compliance. There is a poor miter cut at the right end of the trim piece resulting in an excessive caulk width of 3/8’’ [See Pic 2]. Caulk width should not be more than 1/8’’.

9) Visible tape joints and poor drywall texture throughout. Correct where necessary. (This contractor cannot perform this work under his current license)

Contractor is NOT in compliance. Contractor has not come to an agreement with Complainant to the cost to repair all of the Written Directive items that the Respondent does not hold a proper license to do.

10) Properly prep, fill nail holes and paint at the closet area. (This contractor cannot perform this work under his current license)

11) Closet rods should be at approx. 63 inches while the shelf should be at approx. 66 inches. Correct bedroom closet.

Contractor is in compliance, however, drywall and paint repairs are still needed where the shelves once were.

12) Ensure smoke/CO2 alarm is in proper working order. Change the 4 blank cover plates in the hall to one single 4 gang cover plate and ensure it passes city code requirements. Install missing cover plates where necessary. (This contractor cannot perform this work under his current license)

. . . .

15) Doorway wall to bath is excessively crooked.

Contractor is NOT in compliance. Contractor tried to adjust the appearance by relocating the floor planks at that area. The width of one floor plank measures 4 inches at one end while it measures 3-1/4 inches at the other end. [See Pics 5 and 6] The door was installed crooked.

16) Sand, prep, and repaint baseboards where paint is sloppy and covering construction debris. (This contractor cannot perform this work under his current license)

. . . .

19) Redo shower bench seat so water drains off of it. (This contractor cannot perform this work under his current license)

One additional defect was discovered at the compliance inspection, as follows:

14) Repair damaged vanity cabinet.

Contractor is in compliance. NOTE: It was discovered at this inspection that the installation of the cabinet half way covers the drain cleanout making the cleanout unserviceable unless you remove the cabinet. The design of the cabinet makes it very difficult to operate the water supply turnoffs. There are no doors just drawers.

The record does not reveal whether Complainant or Respondent provided the vanity cabinet. Because this additional defect was not on Complainant’s complaint, it is not addressed further in this decision.

On February 23, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

On March 1, 2016, Respondent filed a timely answer to the Citation, stating that it had corrected the work that was within the scope of its license and that it was still awaiting an estimate from Complainant for correction of the remaining deficiencies. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

An evidentiary hearing was held on October 31, 2016, and November 8, 2016. Complainant submitted 18 exhibits and testified on her own behalf. Respondent submitted two exhibits and presented the testimony of two witnesses: (1) Vasile Creta, its member, and (2) Florin Steve Rivish, the qualifying party/member of Rivish Enterprises LLC DBA: More Than Electric, License No. CR11.300853-D, Respondent’s electrical subcontractor on the job. Because Inspector Gerold had left state service, Investigator Randy Cason testified about the Registrar’s workmanship standards and procedures.

Hearing Evidence

On or about July 30, 2015, Mr. Creta on behalf of Respondent and Complainant signed a contract that Complainant had drafted on Respondent’s contract form for Respondent to perform certain work to enlarge the powder room, install a shower, and perform other work for the contract price of $9,700.00. At some point, Complainant added a light in the shower and the installation of laminate flooring, bringing the contract price to $11,975.00.

The July 30, 2015 contract did not include an estimated date of completion or provide for a permit.

Mr. Creta testified that the cost of the contract was based on labor and partial materials.

On or about August 25, 2015, Complainant’s partner filed an application for a building permit for the project with the City of Chandler’s Transportation and Development Department, Development Services Division. On or about August 27, 2015, the City of Chandler issued a permit for the job.

Complainant testified that she understood that the project would take only two weeks and that, as time went on, she grew impatient with the pace of the project. Complainant later prepared a three-page, single-spaced, typewritten addendum to the contract in which she detailed her dissatisfaction with certain elements of construction. The contract addendum concluded:

A necessary and required permit was NOT obtained prior to the start of construction. According to ARS 32-1132A you should have made sure that any and all permits that were necessary were taken care off prior to the beginning of work. I will personally go to the City of Chandler Transportation and Development Department with the application and drawings provided by you to make an attempt to get the permit. All of the fees will be deducted from the final payment. The City of Chandler may double the fees because the work has already been started. Upon Inspection [Respondent] will provide any necessary exposure required for the Inspector and make any necessary repairs. Any and all repairs going forward will not be at the expense of the homeowner. Any supplies or materials needed to repair problems [will] not be supplied by the homeowner (including flooring).

. . . .

The total cost of this contract was $11,975 and the Balance owed upon final completion is $1525 minus the fees for the Permit. I Marie White and Dennis White agree to pay any balance in full upon Final Completion of the services by [Respondent] per the contract signed 7/30/15 at 8:30 am. Should the services not be completed in a two week period, I will make an official complaint with the Arizona Registrar of Contractors, the BBB, and possibly file a [civil] law suit seeking reimbursement, cost of additional repairs, legal fees, and compensation for time lost to deal with this matter.

Both Mr. Creta on behalf of Respondent and Complainant signed the addendum on or about August 27, 2015.

Investigator Cason testified that he performed a prehearing jobsite inspection on August 31, 2016, or September 1, 2016. Although Respondent’s attorney with Mr. Creta at the inspection, Complainant did not allow Respondent’s attorney in the house to see the current state of the project.

Investigator Cason testified four items that Inspector Gerold noted had not been repaired were within the scope of Respondent’s CR60 license: Item 3 (crooked door assembly), Item 4 (poor caulking of floor to sliding glass door threshold), Item 8 (poorly cut trim piece above closet door), and Item 15 (crooked doorway to bathroom). Investigator Cason testified that none of these items had been corrected.

Investigator Cason testified that he did not take any measurements to verify the precise amount that the door assembly and wall were out of plumb or square (Items 3 and 15). Investigator Cason acknowledged that he did not know the condition of the wall before Respondent altered it or what repairs Respondent had performed on the items that were still not in compliance with the Registrar’s standards.

Three items that Inspector Gerold had noted had not been repaired were beyond the scope of Respondent’s CR60 license: Items 9 and 11 (visible tape joints, poor drywall texture, and painting), Item 10 (nails holes and paint in the closet area), and Item 12 (smoke alarm/CO2 detector not in proper working order).

Mr. Rivish testified that he twice made an appointment and drove the 55 miles to go to Complainant’s house to correct the smoke alarm/CO2 detector. The first time, Complainant was not home and her son would not allow him into the house. The second time, Complainant refused to answer the door.

Complainant played a voicemail at the hearing from Mr. Rivish saying that he had stopped for breakfast and would be late. Complainant testified that Mr. Rivish’s appointment was at 7:30 a.m.

Mr. Rivish testified that the second time, his appointment was at 10:30 a.m. He would not have made an appointment at 7:30 a.m. because he would have had to leave his house at 4:00 a.m. to arrive on time.

Mr. Creta, Mr. Rivish, and many of the subcontractors on the project immigrated to the United States from Romania.

Complainant testified that she was in bed when Mr. Rivish and his four or five workman arrived at the job in two vans. Because she did not know all the workmen and they were speaking Romanian, she became fearful and did not answer the door.

Mr. Rivish denied having two vans or four or five workmen. He testified that it was just him and his son.

Mr. Creta testified that all remaining deficiencies were just punch list repairs that could be completed for several hundred dollars. Mr. Creta testified that Complainant does not want repairs and has played a cat and mouse game with Respondent in an attempt to extort excessive monies.

Complainant submitted an email to Respondent dated March 9, 2016, to which she attached an estimate dated January 13, 2016, from Built by Grace, License No. B-3.257883-R, to perform the following scope of work for the sum of $8,600.00:

-Open door casing at bathroom entry and square opening.

-Repair flooring

-Float drywall in eight different areas and retexture entire area to match existing texture.

-Paint all affected areas.

BBG to supply all labor and materials to complete entire project with the exception of client provided flooring.

We will have our electrician visit when we are doing project to discuss can lighting and research smoke detector.

The estimate was not itemized.

Mr. Creta testified that Respondent had removed and reinstalled the laminate flooring to correct the laminate flooring. Complainant did not present any evidence to dispute Inspector Gerold’s compliance jobsite inspection report that the flooring had been corrected. Neither the original contract nor the addendum provided for can lights.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history at the Registrar’s public website. On this date, Respondent’s license was current and in good standing. No prior discipline has been taken against the license. Complainant’s appears to be the only complaint pending against the license. Respondent’s good license history is considered in mitigation of the penalty.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Complainant established that Respondent failed to comply with the Registrar’s and industry standards with respect to seven items on the Compliance Jobsite Inspection report: (1) Item 3 (crooked door assembly); Item 4 (poor caulking of floor to sliding glass door threshold); Item 8 (poorly cut trim piece above closet door); Items 9 and 11 (visible tape joints and poor drywall texture); Item 10 (nails holes and paint in the closet area); and Item 12 (smoke alarm/CO2 detector not in proper working order); and Item 15 (crooked doorway to bathroom). Complainant thereby established potential cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, a contractor’s license may not be disciplined until it has been afforded a reasonable opportunity to correct its workmanship. Respondent did not establish that Complainant refused to provide reasonable access for it to correct the four items on the Directive and Compliance Inspection Report that were within the scope of its CR60 License.

Mr. Rivish’s testimony was credible. Although Mr. Rivish’s testimony establishes that Complainant refused to provide reasonable access for him to repair the smoke alarm/CO2 detector, because this work was beyond the scope of Respondent’s CR60 license, it could not subcontract the work, even to a properly licensed electrical contractor. Complainant was not required to allow access to Mr. Rivish because he was acting as Respondent’s subcontractor.

Complainant therefore established that Respondent failed to perform appropriate corrective work to comply with the Directive without legal excuse for all seven deficiencies that were noted on the Compliance Jobsite Inspection Report. Therefore, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22).

As a factor in mitigation of the penalty, it does not appear that Complainant provided Built by Grace’s estimate to Respondent until after it filed its written answer to the Citation. It therefore did not have a chance to resolve the items that were beyond the scope of its license before the Registrar issued the Citation. In addition, this was a relatively small project and, with the exception of the wall that needed to be reframed (Items 3 and 15), the remaining deficiencies are relatively minor. It appears that Built by Grace’s estimate of the work necessary to complete repairs may have been inflated and may have contemplated work that was beyond the scope of Respondent’s contract and the Registrar’s Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. CR60.297219-D of Respondent Creta Universal Construction LLC shall be suspended for a period of one business day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 final order, the shall 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 five days from the date of that certification.

Done this day, November 14, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors