ALJDEC decisions subject to certification as final

2015A-4667-ROC · Registrar of Contractors · 2016-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2016, at 1:00 p.m. APPEARANCES: Carol Ann Haug (hereinafter “Complainant” or “Ms. Haug”) appeared on her own behalf. Metro Worldwide Services, Inc., (hereinafter “Respondent”) appeared through its president/qualifying party, Sammy Combs (hereinafter “Mr. Combs”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. § 32-1154(A)(3) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No.150350 issued by the Registrar. Respondent’s license was current on May 18, 2016. This is a residential matter in which on or about September 12, 2015, Respondent contracted with Complainant to perform remodeling construction work at Complainant’s residence at 20025 N. Tealstone Drive, Surprise, Arizona (hereinafter the “residence”). Respondent began its construction work at Complainant’s residence on or about September 12, 2015. Complainant discharged the Respondent from the construction project on or about September 27, 2015. Complainant demanded the return of a portion of the $16,655.00 down payment that she had paid the Respondent. The Respondent refused to comply with Complainant’s request. On or about November 5, 2015, Complainant filed a Complaint with the Registrar against the Respondent. Pursuant to the filing of the formal Complaint an assigned agency Investigator conducted at onsite inspection at Complainant’s residence on December 22, 2015. The Investigator’s jobsite inspection notes provide, in relevant part as follows: During the jobsite inspection the complainant stated, all poor work has been corrected by another contractor she hired. During the inspection the complainant stated, she fired the respondent after the riser was not fixed within a few days, and was pouring water all over her front sidewalk.

The parties were unable to resolve their differences and Complainant requested the Registrar to issue a Citation against Respondent’s license. On February 29, 2016, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: 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).[1]

Testimony The assigned Registrar Investigator, Timothy Pennington (hereinafter “Investigator Pennington”), testified that he performed the jobsite inspection at Complainant’s residence. Investigator Pennington stated that Complainant informed him that all of Respondent’s alleged poor work had been corrected by another contractor. Investigator Pennington stated that Complainant informed him that she had fired the Respondent because a broken riser was not fixed within a few days and was pouring water over her front sidewalk. Investigator Pennington said that no written Directive was issued because the alleged poor work had already been corrected by an alternative contractor hired by Complainant. Investigator Pennington reviewed Complainant’s photographs and opined that two of the photographs indicated poor workmanship by Respondent. Investigator Pennington said that it appeared that a shower liner had been cut too short and that an irrigation riser had been damaged and improperly repaired. Anthony Agelastos (hereinafter “Mr. Agelastos”) testified that he is a licensed tile contractor.[2] Mr. Agelastos stated that he performed tile work on two bathrooms in Complainant’s residence. Mr. Agelastos said that the shower liners for the two bathrooms had been cut too short. Mr. Agelastos said that there was construction debris in the toilet in the main bathroom that had be removed. Ms. Haug testified that fired the Respondent because of communication problems with Mr. Combs. Ms. Haug acknowledged that she had Respondent’s alleged poor workmanship corrected before Investigator Pennington’s onsite inspection. Ms. Haug argued that she should receive most of her down payment back from the Respondent. Oliver Salas (hereinafter “Mr. Salas”) testified that he was one of Respondent’s employees for the Complainant’s construction project. Mr. Salas stated that he was going to perform the tile work on the showers. Mr. Salas said that he did not touch the hallway shower and that he was unable to finish the shower in the master bedroom because the plumbing was not ready. Mr. Salas said that all of the work that he performed at Complainant’s residence was in conformance with applicable workmanship standards. Peter Poetz (hereinafter “Mr. Poetz”) testified that he performed construction work for the Respondent at Complainant’s construction project. Mr. Poetz stated that his apprentice inadvertently stepped on a sprinkler head and damaged it. Mr. Poetz said that he installed a temporary repair on the broken sprinkler head. Mr. Poetz said that the broken sprinkler head would have been repaired within a few days had Respondent not been excluded from the construction project. Mr. Poetz’ testimony is found to be credible. Mr. Combs testified that Respondent was fired from Complainant’s construction project because of a broken sprinkler head. Mr. Combs denied that Respondent had performed any poor workmanship at Complainant’s residence. Mr. Combs stated that Respondent would have repaired any poor workmanship that may have been performed at Complainant’s residence had the Complainant given the Respondent an opportunity to do so.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A.R.S. § 32-1155(C) provides, in relevant part, as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use.

During the jobsite inspection the Complainant informed Investigator Pennington that all poor work had been corrected by another contractor that she had hired. Respondent was not provided an opportunity to inspect the complained of work within fifteen days after receiving a written notice from the Registrar. Respondent’s construction work had been modified by another contractor prior to Investigator Pennington’s jobsite inspection. Mr. Poetz credibly testified that his apprentice inadvertently stepped on a sprinkler head and damaged it. Mr. Poetz said that he installed a temporary repair on the broken sprinkler head. Mr. Poetz said that the broken sprinkler head would have been repaired within a few days had Respondent not been excluded from the construction project. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. . In the event of certification of this 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 the certification. Done this day, May 19, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] ROC License No. 185103.

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