ALJDEC decisions subject to certification as final

2015A-511-ROC · Registrar of Contractors · 2016-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2016, at 1:00 p.m. APPEARANCES: Dave Evan Camadini (hereinafter “Complainant” or “Mr. Camadini”) appeared on his own behalf. Miguel Hernandez Diaz dba M H D Construction (hereinafter “Respondent” or “Mr. Hernandez-Diaz”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Arizona 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 Respondent is the holder of License No. B.186872-R issued by the Registrar. Respondent’s license is current. This is a residential matter in which on or about January 4, 2015, Respondent contracted to remodel Complainant’s residence at 4114 E. Union Hills Dr., Unit 1226 Phoenix, Arizona 85050. During the course of construction the Complainant became increasingly dissatisfied with Respondent’s workmanship and requested that the Respondent resolve the areas of dissatisfaction. Respondent failed to resolve the matters the matters to Complainant’s satisfaction. On or about February 5, 2015, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On March 27, 2015, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, 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. Complaint #1 - Did not complete scope of work in contract: Did not paint doors: Inspector’s observation: Verified, doors not painted. 2. Complaint #5 – Did not complete scope of work in contract: Partially installed kitchen appliances: Inspector’s observation: Verified the dishwasher is not attached at the top. 3. Complaint #7 – Granite was consequently cut incorrectly to fit wrong sink: Inspector’s observation: The sink has inconsistent edge measurements all around. 4. Complaint #8 – Granite: Installed poorly and incomplete (not level, missing caulk, gaps): Inspector’s observation: Verified, hump at seam, gaps at seam over 1/16” of an inch, and no caulking at the edges. 5. Complaint #9 – Carpet: Installed poorly (several issues with stairs & transitions): Inspector’s observations: Verified gaps at the stairway, transitions at bath tile, and re-tack in m/bath. 6. Complaint #10 – Cabinets installed poorly (not level & location of bases incorrect): Inspector’s observation: Verified cabinet over the refrigerator is not level with the others, poor trim and filler installation at cabinet over the refrigerator, stile is cracked on middle upper cabinet, and large gap at dishwasher. 7. Complaint #11 – Paint: Painted poorly throughout (needs touchup throughout the home). Inspector’s observation: Verified several areas where the cutting in at wall, ceiling, base and window edges need to be corrected. 8. Complaint #12 – Wood Floor: Installed poorly/incorrectly (air pockets under floor and sliding pieces): Inspector’s Observation: Verified large gaps between planks, gaps at door jambs, and soft spots in various areas. 9. Complaint #13 – Base Board: Installed poorly throughout and no base board installed in laundry room: Inspector’s observation: Verified nail holes not filled and painted, Complainant states the base in incomplete in the laundry. Respondent states that Complainant was to supply material to complete. 10. Complaint #14 – Master Shower: Built poorly and not to specifications discussed (several issues): Inspector’s observations: Verified floor does not completely flow towards drain and is wavy, inconsistent grout lines, and lippage at décor tiles on wall. The Registrar has determined than any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

At hearing Complainant acknowledged that he denied access to the Respondent to comply with the written Directive. Consequently, no corrective work was performed in response to the written Directive. On July 13, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges:

Charge 1: 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]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

Mr. Camadini testified that the Respondent was his significant other’s uncle and that he entered into a contract with Respondent because of the relationship. Mr. Camadini stated that the Respondent’s work was very poor and that Respondent repeatedly increased the cost of the contract. Mr. Camadini, acknowledged that he had denied access to Respondent. Mr. Camadini said that the Respondent had left an inappropriate voice mail on his telephone and that he did not want the Respondent back in his house. Mr. Camadini played the Spanish language voice mail left by the Respondent. The voice mail message played by the Complainant contained inappropriate language but was not threatening. Mr. Camadini said that he and his father had corrected most of the items set forth in the written directive. Mr. Camadini said that he wanted monetary compensation from the Respondent. The assigned Registrar Investigator, Steve Klein (hereinafter “Investigator Klein”), testified that he was the original Investigator in this matter and that he prepared the written Directive that was issued in this matter. Investigator Klein stated that during his onsite inspection he verified that the items set forth in the written Directive failed to meet minimum workmanship standards. Investigator Klein said that he had not performed a compliance or prehearing inspection because no corrective work had been performed by the Respondent. Investigator Klein’s testimony is found to be credible. Mr. Hernandez-Diaz testified that he had entered into a construction agreement with the Complainant because the Complainant was living with his wife’s niece. Mr. Hernandez-Diaz did not dispute the items of corrective work set forth in the written Directive. Mr. Hernandez-Diaz said that he was ready and willing to perform the directed corrective work on Complainant’s residence. Mr. Hernandez-Diaz said that the Complainant had refused to allow him access to Complainant’s residence to perform the directed corrective work. Mr. Hernandez-Diaz acknowledged that he had left an inappropriate voice mail message on Complainant’s telephone. Mr. Hernandez-Diaz asserted that the Complainant was demanding and difficult to deal with. Mr. Hernandez-Diaz’ testimony is found to be credible. 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). The Respondent did not dispute that the items set forth in the written Directive required corrective action. The Respondent credibly testified that he had been willing and able to comply with the terms of the written Directive. The Respondent stated that the Complainant had denied the Respondent reasonable access to comply with the terms of the written Directive. The Complainant acknowledged that he had denied the Respondent access to his residence and that he and his father had corrected most of the items set forth in the written Directive. This Tribunal concludes that Respondent was denied reasonable access to comply with the written Directive and that said denial constitutes a valid justification for Respondent’s failure to comply with the terms of the written directive. Accordingly this matter should be dismissed. RECOMMENDed order In view of the foregoing, it is recommended that this matter shall 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, February 26, 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] A.R.S. § 32-1154(A)(22) provides as follows:

Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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