ALJDEC decisions subject to certification as final

2015A-95-ROC · Registrar of Contractors · 2015-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 2015 APPEARANCES: Joseph and Alice Thibault appeared on their own behalf. D and R Property Restoration, LLC (Respondent) was represented by its owner, qualifying party and authorized representative, Richard Belanger. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainants Joseph and Alice Thibault are the owners/occupants of a residence located at 9922 West Palmeras Drive, Sun City, Arizona 85373. 2. Respondent holds Arizona Contractor’s License No. 262284. 3. On January 9, 2015, Complainants filed a complaint with the Registrar alleging that beginning on September 7, 2014, Respondent had performed poor and incomplete work when remodeling their home, including damaging cabinets, improper installation of cabinets, failure to caulk, improper installation of tile, failure to install a tile backsplash, and leaving electrical outlets hanging. The complaint also alleged that Respondent failed to obtain permits for the remodeling project. 4. The Registrar assigned investigator Timothy Pennington to investigate the complaint. Pennington testified that he arranged to perform an inspection on January 26, 2015, and notified Complainants and Respondent of the time and place of the inspection. Both Respondent and Complainants were present at that inspection. Pennington indicated that at the time of an inspection, he substantiated some of Complainants’ allegations of poor workmanship. He indicated that he found that the new cabinets had been damaged when installed and had visible scratches and dents, the cabinets extended outside the soffit and had areas that were not caulked, unlevel wall tile separated the living room from kitchen and had not been grouted, baseboards and trim not installed, and hanging electrical outlets. 5. On January 27, 2015, Pennington sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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. Tiles on wall separating the living room from the kitchen not installed level or grouted. 2. New cabinets damaged when installing. 3. Back splashes not completed, grouting, and electric outlets left hanging. 4. Cabinets extend outside of the edge of the soffit. 5. Base boards and trim not installed[,] caulked [and] ready for paint. 6. No permit pulled by contractor, and electrical wiring, wall removed, plumbing has been performed.

Correct by the appropriate means using a properly licensed contractor. Permit must be obtained before any work is to be completed

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

6. Respondent attempted corrections of the above problems, but did not complete everything. 7. On March 9, 2015, Pennington performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had corrected some issues, but not all of them. Specifically, Pennington found that while Respondent attempted to repair the kitchen cabinets, his work fell below minimum construction standards, the tile on the wall separating the living room and kitchen was not fixed and the baseboard remained unfinished and not ready for paint. He acknowledged that Respondent corrected the areas that were not caulked, the cabinet that extended outside the soffit, the backsplash, and the hanging electrical outlets. 8. On July 8, 2015, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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. 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.” 9. Richard Belanger testified that he had now obtained all necessary permits. He indicated that Complainants asked that he stop work on the project on November 12, 2014, but he had returned to correct the issues specified in the Directive. He said he had spent roughly five hours making corrections. 10. Complainants testified that they did not permit Respondent to perform corrective work on the tile on the wall separating the kitchen and living room, but simply told Respondent to remove the glass tile. Doing so did not make the area level. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established Respondent did work of questionable quality in Respondent’s home, including damaging new cabinets upon installation resulting in visible scratches and dents, improper installation of cabinets that extended outside the soffit and had areas that were not caulked, installing unlevel tile separating the living room from kitchen that had not been grouted as well as, failure properly to install baseboards, trim and electrical outlets. 4. Thus, 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] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[2] An A.R.S. § 32-1154(A)(22) violation is, however, unwarranted given Respondent made efforts to correct his work. In doing the corrective work, he complied with the Complainants’ request not to do work on the tile separating the kitchen and living room other than to remove the glass tile. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend D and R Property Restoration, LLC’s License No. 262284 for a period of three (3) 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, December 24, 2015.

/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)(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.” Emphasis added.

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