ALJDEC decisions subject to certification as final

2015A-4804-ROC · Registrar of Contractors · 2016-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lynda Takeda

COMPLAINANT,

v.

Mark Steven Construction LLC,

License No: 251568

RESPONDENT.

No. 2015A-4804-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 5, 2016

APPEARANCES: Complainant Lynda Takeda appeared on her own behalf. Mark Olea, Owner and Qualifying Party, appeared on behalf of Respondent Mark Steven Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Mark Steven Construction LLC (Respondent) is the holder of License No. 251568 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 16, 2015, Lynda Takeda (Complainant) suffered a water loss at her home. An adjuster from Complainant’s insurance provider, Farmers Insurance, came out to Complainant’s home with Mark Olea, Respondent’s Owner and Qualifying Party, to review the work necessary to repair the water damage.

The Farmers Insurance estimate provided the scope of work and the price of the work to be performed. The total initial cost was $32,606.98.

On or about November 17, 2015, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. The Complaint was returned for more information.

On or about June 1, 2016, the Registrar received a new Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection, Investigator Klein issued a written directive to Respondent that 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). 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 7-29-16.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Work was shoddy, redone x 3 by another company which I paid.

Laminate flooring seams coming loose.

Respondent shall complete project per original contract agreement, properly executed change orders, , [sic] local building codes and manufacturers installation instructions

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

Since the issuance of the written directive, the laminate flooring has been repaired. Both parties agreed at the time of the hearing that the flooring was no longer an issue.

Investigator Klein did not perform a compliance inspection.

The Registrar issued a Citation against Respondent, charging a possible violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

At hearing, Investigator Klein testified that during the jobsite inspection, he observed the issues with the flooring and that the project was not complete.

Complainant testified that the insurance company had paid Respondent $27,456.45 to perform the work involved. Complainant agreed she had received a refund of $1,466.27, which would leave $6,716.80 for Complainant to complete the work with a different contractor. Complainant denied having terminated the contract with Respondent, but acknowledged that Respondent stopped working on the project in July 2015. Complainant asserted that no underlayment was installed and that painting and texturing was not completed. Complainant’s primary complaint regarded plumbing failures and leaks. Complainant acknowledged that she purchased the cabinets and countertops from Home Depot and Home Depot installed the cabinets and countertops in the home. Complainant then asserted that Respondent sent someone to install the sinks and complete the plumbing after the cabinets had been installed. Complainant could not explain how Respondent would know that the cabinets had been installed or why Respondent would send someone to complete the plumbing at that time. Complainant did not recall the name of the person who did the plumbing.

Mr. Olea testified that Respondent performed the work under the contract up through the cabinet stage. Mr. Olea stated that Respondent completed all underlayment, texturing, and painting required under the contract. Mr. Olea indicated that at that point, he was told through the insurance adjuster that Complainant wished to go with a different contractor to complete the work. Mr. Olea testified that he then calculated a refund for Complainant based on work not yet completed under the contract. Mr. Olea stated that after being released, he did not hear from Complainant again until he received the complaint from the Registrar. Mr. Olea denied performing or causing to be performed any plumbing work at Complainant’s home after the cabinets were installed. Mr. Olea also clarified that the insurance company issued a supplemental estimate for the cabinets once it was established the original estimate was insufficient to pay for the cabinets necessary and that Complainant also had a second claim during the time in question for a separate loss.

Respondent also presented the testimony of Ted Hannappel, an employee of Silverton, a licensed contractor. Mr. Hannappel testified that he provided Complainant with an estimate for cabinets and that he felt Complainant was attempting to get more money from the insurance company. Mr. Hannappel stated that Complainant did not hire Silverton to install the cabinets.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 25, 2016. Such prior License record reflects that Respondent’s License 251568 was first issued on December 22, 2008, and is current. Such prior License record also reflects that there was one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The weight of the credible evidence failed to establish that Respondent was responsible for the faulty plumbing work performed at Complainant’s home. It was unclear from the evidence at hearing if Respondent was the only contractor to perform work on the flooring at the time Complainant filed her complaint. Respondent presented credible testimony that it was notified the contract had been terminated through the insurance adjuster and did not perform any work on the project after July 2015. Therefore, Complainant failed to establish that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Because Complainant failed to establish that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3), Respondent cannot be held responsible for failing to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint in this matter.

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, October 25, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors