ALJDEC decisions subject to certification as final

2015A-551-ROC · Registrar of Contractors · 2016-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2015. APPEARANCES: Complainants Melanie and Aldon Terpstra appeared on their own behalf. Respondent Geith Construction, Inc. was represented by its qualifying party, Brett Geith. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. 132002 to Geith Construction, Inc. (“Respondent”). Respondent’s license type is class B residential. On February 4, 2015, the Registrar received a Complaint against Respondent from Melanie and Aldon Terpstra (“Complainants”) alleging that on November 4, 2014, Respondent had entered into a contract with them to remodel a bathroom, demolish an exterior shed and rebuild a shell of a new shed, but had performed poor work and done plumbing and electric work that his license did not authorize. The contract was attached to the Complaint and provided in pertinent part as follows: Work Scope: 14’x36’ Garage Master Bathroom Remodel/Addition

DESCRIPTION - (14’x36’ Garage) Includes: Concrete with 12’x12’ parameter footings, Trusses with engineered stamp, 10’x7’ Roll-up Garage Door, Framing Lumber & Hardware, Roofing Material & Labor, 2) Exterior Doors (34”x80”), 2) Duel Windows (48”x48”), Demolition of Existing Shed, Dumpsters, Framing Labor - This does NOT include (electrical, painting, drywall, plumbing or any permits)

COST: $13,836

- (Master Bathroom Remodel/Addition) Includes: Demolition, Relocation of Drains & Supply Lines, Drywall, Tile Installation, Framing COST: $5,564

Upon the filing of the Complaint, the Registrar assigned investigator Matt Gunstra to investigate. Gunstra notified both Complainants and Respondent that a jobsite inspection was scheduled for March 19, 2015. Complainants and Respondent attended the inspection. During the inspection, Gunstra substantiated workmanship violations, including, unfinished plywood at the back of the house, problems with the drywall around the can lights in the bathroom, a plumbing fixture that appeared to have been installed backwards as the hot and cold sides were switched, a bathroom toilet not sealed to the tile as required, poorly finished bathroom wall drywall containing gaps with tape showing through and mudding, and substandard drywall in the laundry room. Gunstra testified that the problems with the drywall occurred during installation when the drywall tape failed to adhere and were not the result of Complainants peeling away Respondent’s work. Gunstra testified that Brett Geith admitted that he had performed electrical and plumbing work on the project. Gunstra noted that this type of work is beyond the scope of class B general residential contracting license. Gunstra indicated that he did not substantiate abandonment because after Respondent demolished the shed, he was told to stop work. During the inspection, Melanie Terpstra informed Gunstra that she did not want Respondent to return and do any more work. As such, Gunstra did not issue Respondent a Directive from the Registrar to correct its workmanship deficiencies. He simply sent the file to the Registrar’s Legal Department for further processing and disposition. On July 9, 2015, the Registrar issued a Citation against Respondent, charging a possible violations of A.R.S. § 32-1154(A)(1) (abandonment), (A)(3) (poor workmanship that fell below minimum construction standards), and (A)(16) (knowingly contracting beyond the scope of the license). The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. Aldon Terpstra testified that Complainants were not pursuing the abandonment charge. He indicated that the parties’ contract expressly contemplated both plumbing and electric work and referenced the moving of drains. He denied staging any violations for Gunstra’s benefit and maintained he would not cause harm to his home to prove a point. He denied ever being satisfied with Respondent’s work and said an email interpreted as such by Brett Geith was simply his attempt to end the parties’ relationship in a civil manner. Brett Geith testified that Respondent was hired to do a bathroom remodel and garage demolition. He admitted that, on Respondent’s behalf, he performed plumbing and electrical work without change orders or change of price because Aldon Terpstra refused to negotiate with him. He noted that throughout the project he felt intimidated and slandered. Geith believed that the Complainants tampered with his work to be able to complain to the Registrar and that if Respondent’s work was poor Aldon Terpstra would not have sent him an email expressing satisfaction. Laura Geith testified that she is Brett Geith’s wife. She noted that they were unaware of the limits on Respondent’s license and had they been permitted to they would have fixed any workmanship issues. She asked that Respondent’s 17 years in business without complaint be considered by the Tribunal. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainants bear 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. Undisputed credible testimony established that when Respondent performed work in Complainants’ home, it did so in a manner that resulted in unfinished plywood at the back of the house, problems with the drywall around the can lights in the bathroom, a plumbing fixture that appeared to have been installed backwards as the hot and cold sides were switched, a bathroom toilet not sealed to the tile as required, poorly finished bathroom wall drywall containing gaps with tape showing through and mudding, and substandard drywall in the laundry room. Accordingly, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[1] 4. The undisputed evidence at hearing established that Respondent contracted to perform plumbing and electrical work that was outside the scope of its class B residential contracting license. Therefore, Complainants established that Respondent violated A.R.S. § 32- 1154(A)(16).[2] 5. No evidence at hearing supported a finding that Respondent abandoned its work in violation of A.R.S. § 32-1154(A)(1).[3] The parties mutually agreed that Respondent would not build a new exterior shed. 6. The fact that Respondent was not afforded the opportunity to correct its work is of no consequence because failure to correct was not the basis of any charges brought by the Registrar or considered by the Tribunal. The basis of the workmanship charge is that Respondent’s work should conform to minimum construction standards when complete without the need for corrective work. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Geith Construction LLC’s License No. 132002 for a period of five (5) days. 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, January 8, 2016.

/s/ Suzanne Marwil 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 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.” [2] 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.” [3] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

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