ALJDEC decisions subject to certification as final

2015A-4850-ROC · Registrar of Contractors · 2016-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2016 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Respondent Valley Residential Services LLC did not appear.[1] ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Valley Residential Services LLC (Respondent) is the holder of License No. 282600 issued by the Arizona Registrar of Contractors (Registrar). Respondent was issued a B-3 license, for remodeling/repair, which authorized Respondent to perform general contracting work except plumbing and electrical work. On or about May 7, 2015, David and Janice R. Finatri entered into a contract with Respondent for an extensive remodel of their home. The project included, among other things, electrical and plumbing work. The contract did not include Respondent’s address or license number, the estimated date of completion, a description of the work to be paid to the contractor, the total dollar amount to be paid to the contractor, the dollar amount of any progress payments and the stage of construction at which the contractor is entitled to collect progress payments, or a statement that the property owner has the right to file a written compliant with the Registrar. Respondent was supposed to start work on June 1, 2015, but did not begin the demolition until June 15, 2015. Respondent stated that the project would take five to six weeks, but promised it would be done by August 1, 2015. Respondent did not start building until July 2015. Mr. Finatri passed away on August 22, 2015. On or about September 28, 2015, Ms. Finatri attempted to talk to Brandon Jefferies, Respondent’s Qualifying Party, about the work that needed to be done, the schedule of work, and when the project might be done. On or about September 29, 2015, Ms. Finatri went to the home in the evening after Mr. Jefferies and the workers had gone for the day. At that time, Ms. Finatri realized Respondent had changed the lock on the front door and had changed the garage door code such that she could not get into the home. When Ms. Finatri asked for the key and code, Mr. Jeffries refused to give either to her. On or about October 6, 2015, Ms. Finatri filed a Complaint with the Registrar alleging Respondent had failed to make progress towards completion, failed to communicate with her, and refused to allow her access to her property. Upon receipt of the Complaint, the Registrar assigned the matter to Investigator Timothy Pennington. Considering the allegation that Ms. Finatri was being denied access to her home and the potential of elder abuse, Investigator Pennington went to the site to assess the situation. Investigator Pennington made contact with Brandon Jefferies, Respondent’s Qualifying Party, who stated that his contract with Ms. Finatri gave him the right to deny her access to the property. Investigator Pennington asked to walk the property, but Mr. Jefferies would not allow Investigator Pennington access. On October 28, 2015, Investigator Pennington conducted a jobsite inspection. Because the Complaint did not make any specific allegations of poor work, Investigator Pennington was not identifying any workmanship issues. However, Investigator Pennington did take note of numerous problems throughout the home. The jobsite inspection was the first time in approximately six weeks that Ms. Finatri had been inside the home. Once she saw the work that had been done in the home, she amended the Complaint to include a detailed list of workmanship issues. The Amended Complaint was received by the Registrar on November 2, 2015. On or about November 3, 2015, Investigator Pennington 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). You are hereby directed to remedy the following violations by the appropriate means:

1. Work has not been compete[d] per contract.

Correct by the appropriate means using a properly licensed contractor.

Exhibit 4. The work was to be completed by November 18, 2015. On November 19, 2015, Investigator Pennington conducted a compliance inspection with respect to the November 3, 2015 directive and a jobsite inspection as to the Amended Complaint. At that time, Investigator Pennington noted “excessively poor work.” Investigator Pennington noted that some electrical and plumbing work had been done, but Mr. Jefferies refused to provide the name of any subcontractors that had worked on the project. Investigator Pennington concluded that Respondent did the electrical and plumbing work beyond the scope of its license. On January 15, 2016, Investigator Pennington attended an inspection with the City of Surprise, at which time, the project did not pass the inspection. At hearing, Investigator Pennington testified that at the prehearing inspection, the work had not been completed and that numerous issues still remained, including that electrical outlets did not work and the shower still leaked. Investigator Pennington explained that when the shower was turned on inside the house, you could observe the leaking from outside the house. Investigator Pennington stated that he believed Respondent was not capable of doing a good job and did not believe Respondent should continue to be licensed. At hearing, Ms. Finatri testified that during the project, Mr. Jefferies got more aggressive against her during the project and kept demanding more money including $4,000.00 for permit fees, which she gave him. Ms. Finatri later learned from the City of Surprise that the total permit fees paid for the project was $359.00. Mr. Jefferies also threatened Ms. Finatri with a lien against her house that he would foreclose on if Ms. Finatri did not pay him. Ms. Finatri stated that she was staying with friends and had her furniture stored in the garages of five different friends until she can get back in the home. The project has still not passed the City of Surprise inspection. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12); A.R.S. § 32-1154(A)(16); and A.R.S. § 32- 1154(A)(22). Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 15, 2016. Such prior License record reflects that Respondent’s License No. 282600 was revoked on March 7, 2016. Further history indicated that Respondent’s license was suspended for lack of bond from October 15, 2014, through December 10, 2014, and again on January 17, 2016, was suspended for non-renewal from January 1, 2015, through May 2, 2015, and was under a finite suspension from February 29, 2016, through March 2, 2016. Such prior License record also reflects that are two open complaints against Respondent’s license, two prior complaints that resulted in discipline, and a prior complaint that was resolved, settled, or withdrawn. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The Registrar bears the burden of proof to establish Respondent’s statutory violation 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). 3. The evidence established that Respondent did not comply with the required permits for the project. Therefore, the Registrar established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(2).[2] 4. The evidence established that Respondent refused to allow Ms. Finatri, the homeowner, access to the property for approximately six weeks. Therefore, the Registrar established that Respondent did not perform the work in a professional manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[3] 5. The evidence established that Respondent’s work on the project included numerous workmanship issues including plumbing and electrical problems. Therefore, the Registrar established that Respondent did not perform the work in a workmanship manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 6. The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32- 1158(B).[4] Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).[5] 7. The evidence established that Respondent knowingly contracted to perform electrical and plumbing work beyond the scope of its license. Therefore, the Registrar established that Respondent violated A.R.S. § 32-1154(A)(16).[6] 8. The undisputed credible testimony established that Respondent did not comply with the written directive from the Registrar. Therefore, the Registrar established that Respondent violated A.R.S. § 32- 1154(A)(22).[7] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Valley Residential Services LLC’s License No: 282600. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Registrar’s final order, the 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 40 days from the date of that certification. Done this day, March 15, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] At some point during the hearing, Brandon Jefferies, Respondent’s Qualifying Party, contacted the Office of Administrative Hearings, but could not be connected to the hearing due to his poor cell service from his own private Idaho. [2] 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 the state or any political subdivision of the state in any material respect that 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.” [3] 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.” 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.”

[4] A.R.S. § 32-1158 provides as follows: B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. [5] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f] ailure in any material respect to comply with this chapter.” [6] A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [7] 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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