ALJDEC decisions subject to certification as final

2015A-4013-ROC · Registrar of Contractors · 2016-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2016 held open until June 7, 2016 APPEARANCES: Richard L. Cooper, Complainant; Beau Cruz, Registrar of Contractors Investigator; Ty Cranmore, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant and Respondent entered a contract for the remodel of Complainant’s home. 2. On September 21, 2015, Complainant filed a complaint with the Registrar of Contractors. After conducting a job site inspection on September 23, 2015, the Registrar of Contractors Investigator, Beau Cruz, issued a Directive from the Registrar on December 1, 2015. 3. The text of the Directive 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:

Furthermore, contractor is to obtain the necessary permits and comply with all inspections and corrections required by the City of Scottsdale or governing municipality.

Complaint Item 2: Unfinished water fall leading in from front entry. Investigator’s observation: Finish water fall leading in from front entry.

Complaint Item 3: Tile inset was installed in floor after field tile was laid causing numerous chips to field tile. Investigator’s observation: Correct by the appropriate means the numerous chipped/ damaged and uneven grout lines, between insets and field tiles and, throughout entire entry area and atrium way field tile area.

Complaint Item 5: Attempts to repair field tile resulted in different grout color. Investigator’s observation: Correct the repaired/replaced field tiles with different color of grout (grout discoloration) lines, to match the grout in field tiled area.

Complaint Item 6: Numerous areas where wall tile base is not attached properly, grouted, cut-in or finished. Investigator’s observation: Lippage /overlapped and sloped unleveled tile(s) along tiled curb step from atrium way to living room. Improperly cut tiles at doorway to master bedroom, with missing grout. Improperly installed/set base tiles, in the field tiled areas that are not flush with adjacent base tile joints not grouted, poor caulking on joints between wall and base tile and, large gap noted between carpet and, baseboard located on north (N) wall of the living room.

Complaint Item 7: Base of door next to tile not cut improperly and has been over-grouted to compensate poor workmanship. Investigator’s observation: Improperly cut tile at doorway to master bedroom, with missing grout.

Complaint Item 10: Master bathroom vanity cabinets have been ruined and unusable due, to being improperly cut plumbing location cut-outs. Investigator’s observation: Vanities sink cabinets for the master bathroom have not been completely installed. Respondent is to install replacement vanity cabinets as selected by the complainants, in a professional and workmanlike manner.

Complaint Item 11: Vanity for secondary bathroom has not been hooked up, and top is not attached. Investigator’s observation: Respondent is to install replacement vanity cabinet as selected by the complainants, in a professional and workmanlike manner.

Complaint Item 14: Cabinet doors above the refrigerator are missing. Investigator’s observation: Install the cabinet doors on wall refrigerator wall niche cabinet.

Complaint Item 15: Cabinets and microwave above the stove above the stove have not been properly centered. Investigator’s observation: Properly center wall cabinets and microwave above range (stove) to include properly sized end cabinet.

Complaint Item 16: Trim pieces have not been attached Investigator’s observation: Install all missing trim pieces between soffit ceiling and wall cabinets, and ensure that all joints are properly mitered.

Complaint Item 17: Under mount wiring for cabinets left open and bare. Investigator’s observation: Respondent is to ensure that all bare “ROMEX” wire exiting walls are properly concealed and connected to the proper circuits by a properly licensed contractor.

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

Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on December 16, 2015.

You are advised that if your license is suspended for administrative reasons[1] or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license 266432 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.

Please direct all questions regarding this Directive to the undersigned Investigator. 4. On March 7, 2016, the Registrar of Contractors Investigator conducted a compliance inspection and on May 31, 2016, he conducted a pre- hearing inspection. During both inspections, the Registrar of Contractors Investigator confirmed that the work on the Directive had not been completed. 5. The matter came to hearing at the Arizona Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State regulation. 6. Respondent did not appear at the hearing. 7. The Registrar of Contractors Investigator testified that A.R.S. § 32- 1154(A)(12) was no longer an issue because Respondent had voluntarily cancelled his license. 8. Complainant testified that Respondent did not pay his laborers, but he admitted that he himself had withheld approximately $11,500.00 from Respondent.[2] Complainant stated that Respondent would not give him lien releases and he, Complainant, was afraid to let Respondent back on the job for fear he would do damage. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1158. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(1), (2), (3), (12) (specifically A.R.S. § 32-1124(B) and 32-1158(B)), (17), and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(1) provides grounds for suspension or revocation of a contractor’s license for abandoning a contract or refusing to perform after submitting a bid without a legally recognized excuse. The evidence at hearing did not support a finding that Respondent abandoned the project because Complainant testified that it was he who did not allow Respondent to return to the job. 4. A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. No evidence was presented to establish that Respondent violated this statutory provision and none of the items in the Directive indicate that they are the result of deviation from the plans. Because Respondent was fired before the job was complete, it would not be appropriate to find that it violates building codes. 5. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. The items identified in the Directive indicate that there were several items that were the result of poor workmanship and some items that were merely unfinished. Specifically, items 3, 5, 6, 7, and 10 of the Directive indicate poor workmanship. However, the remaining items are simply unfinished and should not be considered to be in violation. 6. A.R.S. § 32-1154(A)(12) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. A.R.S. § 32-1124(B) requires contractors to display their license number and the acronym “ROC” on the premises of their projects and on all documents they employ. A.R.S. § 32-1158(B) provides for the minimum elements of any contract involving over $1,000.00. The email included in Complainant’s complaint indicates that not all elements of a contract are included in it and it does not contain Respondent’s license number. However, Respondent’s Answer to the Citation and Complaint states that the signed contract that followed the email was compliant. No evidence was presented to refute this. Therefore, it was not established to be a violation. 7. A.R.S. § 32-1154(A)(17) provides grounds for suspension or revocation of a contractor’s license for “contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” The information on the Registrar of Contractors website indicates that Respondent’s license was active and in good standing on June 26, 2015, which was when the complaint states was the contract date. Therefore, it was not established that Respondent contracted or submitted a bid in this matter while Respondent’s license was suspended or inactive. 8. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. The evidence at hearing was clear that Respondent did not complete any of the items in the Directive. However, because Complainant acknowledged at the hearing that he did not allow Respondent to complete the project, Respondent had a valid justification for its failure to do so, and a violation of subparagraph 22 was not established. 9. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. As of the time of this recommendation, Respondent’s license history showed 2 open complaints and no closed complaints. It also showed that the license was cancelled on April 22, 2016, was suspended for non-renewal from August 1, 2015 to September 24, 2015, was inactive from May 14, 2012 to May 8, 2014, and was suspended for lack of bond from January 13, 2012 to February 9, 2012. 10. In this case, the Complainants have established that Respondent violated A.R.S. § 32-1154(A)(3) regarding items 3, 5, 6, 7, and 10 of the Directive from the Registrar dated December 1, 2015. RECOMMENDED DECISION Based on the foregoing considerations, it is hereby recommended that Respondent’s license (License No.266432) be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, June 21, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F). [2] Respondent’s Answer to the Citation and Complaint indicates that it is more like $20,300.00. See Prolaw case file.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826