ALJDEC decisions subject to certification as final

2016A-1101-ROC · Registrar of Contractors · 2017-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Yvonne Gee

COMPLAINANT

v.

H N R Construction LLC,

License No: 242224

RESPONDENT.

No. 2016A-1101-ROC

No. 2016A-3960-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 27, 2016 held open until March 13, 2017

APPEARANCES: Yvonne Gee, Complainant; Alane Ortega, Attorney for Respondent; Harry Rafalski, Respondent’s representative; Steve Lawton and Matt Gunstra, Registrar of Contractors Inspectors

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Registrar of Contractors.

FINDINGS OF FACT

Complainant hired Respondent to perform renovations on her investment home. When she was unsatisfied with the work Respondent performed, she filed complaints with the Registrar of Contractors on April 4, 2016 (“First Complaint”) and October 7, 2016 (“Second Complaint”).

As a result of the First Complaint, Registrar of Contractors Investigator Matt Gunstra conducted a job site inspection on May 5, 2016. When Complainant filed an addendum to the First Complaint, Investigator Gunstra conducted another job site inspection on May 31, 2016. Investigator Gunstra issued a Directive from the Registrar (“First Directive”) June 2, 2016, with an expiration date of June 16, 2016. On June 7, 2016, he received a second addendum from Complainant. He called Respondent to ask if Respondent would correct the items in the second addendum without an order and Respondent agreed. On June 17, 2016, Respondent notified the Registrar of Contractors that the items on the Directive were complete.

On June 24, 2016, Investigator Gunstra received a third addendum to the complaint and notified Respondent. On June 1, 2016, Investigator Guntra conducted a combined Compliance Inspection to review the completion of items in the First Directive and to conduct a job site inspection on the third addendum to the First Complaint.

As a result of the July 1, 2016 visit, Investigator Gunstra issued another Directive from the Registrar (“Second Directive”) with an additional 9 items of correction. The Second Directive carried a due date of July 15, 2016.

Complainant called the Registrar of Contractors for four days disagreeing with Investigator Gunstra’s decision not to include some items on the Second Directive. On July 15, 2016, the Registrar of Contractors received a fourth addendum to the First Complaint stating Complainant’s dispute about those items and containing some new items of complaint.

After receiving the fourth addendum, Investigator Gunstra added Investigator Steve Lawton to the compliant in order to have a senior investigator and a second opinion. It was determined that the items in the fourth addendum would be reviewed at the pre-hearing inspection and they were not added to the First Complaint at that time.

Meanwhile, Complainant emailed Investigator Gunstra that no attempt had been made to address the items on the Second Directive, so he sent the matter to the Registrar of Contractors legal department to issue a Citation. Because no work had been done, no compliance inspection would take place on the Second Directive.

On September 19, 2016, Investigator Gunstra received a copy of an email between the parties scheduling repairs to be done by Respondent. He told the parties to copy such information to the legal department, not him, but he testified that it appeared that Complainant was planning to give access to Respondent to help get the permits for the project that were part of the First Directive.

On October 5, 2016, Investigator Gunstra conducted a pre-hearing inspection on the items in the First Complaint and to tell Complainant what should be on a new complaint. This was the first time Investigator Lawton was on site. Respondent was not invited to the pre-hearing inspection. At the inspection, Investigator Gunstra noted that not all items in the First Directive had been properly completed. Although the condition of the bamboo floor that Respondent installed was not part of the First Complaint, he noted that it appeared to be cupping and he testified that if the home was kept very hot, it could have caused this condition to arise, but he did not know how hot it would have to be.

Registrar of Contractors Investigator Lawton handled the Second Complaint. It was received on October 7, 2016. He conducted a job site inspection on December 1, 2016 with both parties present, though Respondent’s attorney was not allowed on the property by Complainant.

On December 2, 2016, Investigator Lawton received an email from Complainant asking him not to issue a Directive until January 2, 2017 because she was going to be gone and she wanted to give access to the property.

Investigator Lawton issued two directives under the Second Complaint, one on December 22, 2016 (“Third Directive”), due January 6, 2017 substantiating 10 of the 13 items in the Second Complaint.

Investigator Lawton noted that it did not appear any work had been done since the October 5, 2016 inspection. Respondent’s representative stated that he had been locked out. Investigator Lawton had been under the impression that Respondent had a key to the front door but he did not know if the security gate used the same key.

Citations were issued in both matters and Respondent filed answers. The matters were consolidated after they were sent to the Arizona Office of Administrative Hearings to be set for hearing.

At the hearing, Respondent disputed several items that were on the Directives and Complainant disputed items that had not been put in the Directives.

Building Permit

The First Directive ordered Respondent to obtain any required building permits and cooperate with applicable inspections. The contract between the parties states that Respondent will be responsible to obtain permits. However, Respondent did not include the cost of obtaining a permit in the contract. Respondent argued that this item should not be considered a violation because Complainant did not want a permit. Complainant denied that she had stated that she did not want Respondent to obtain a permit asking why she would want such a thing. Respondent countered that the reason Complainant did not want him to obtain a permit was because she wanted to use the money on other things. He also testified that Complainant did not want a permit because her husband had removed a wall in the home and built another one and they did not want it to be inspected and their friend had told them they didn’t need a permit for this project. Complainant did not dispute that her husband had knocked down a wall inside the home.

On this issue, the testimony of one party directly contradicts the other leaving the Administrative Law Judge no way to determine the facts without making a finding that one of the parties is not credible. Based on the parties’ testimony on this and other issues and the evidence of record, the Administrative Law Judge finds that the Complainant is not credible. Complainant alleged that she did not feel safe living in the home because she could not be sure that it was safe, yet she argued that she was not required to provide the plans needed to get a permit, according to the contract, once the work started. This is hardly the position of someone who fears for her safety in her own home. The fact that Complainant is extremely interested in cost savings was plainly evident throughout the hearing. She refused to turn on the air conditioning in the summer when Respondent was required to complete work on the First Directive, forcing him to work in a home that was approximately 85 degrees every day and when the parties met in the winter, she had not yet turned on the heat. She contracted for Respondent to create a new cabinet in an extremely old kitchen, opting to try to match the materials rather than replace cabinets that, by the photographs, had aged a great deal. These and other actions by Complainant show that she was extremely conscious of the costs of the project, and it would be consistent with that attitude for her to want to forego the cost of a permit to pay for other things. Further, Respondent could easily have included the price of obtaining a permit in the contract and applied for a permit, but the cost of a permit was not in the estimate. There is no reason that a contractor would not want to get a permit as long as he or she is being paid for his or her time and labor. And there is no reason for a contractor to agree to obtain a permit for no charge. Complainant’s alleged desire to avoid having an inspector find a problem with the work that her husband did it also consistent with Respondent’s defense. Respondent also offered ample evidence that when he attempted to obtain a permit, Complainant did not cooperate. Respondent’s statements and arguments on this issue are much more consistent than Complainant’s. Therefore, the Administrative Law Judge finds that Complainant is not credible and most likely directed Respondent to forego obtaining a permit before they entered their contract. Complainant, having been complicit in avoiding the requirement of obtaining a permit, should not be allowed to benefit now from her inappropriate actions by filing a complaint with the Registrar of Contractors. Additionally, Respondent’s representative tried to obtain a permit to comply with the First Directive and was denied because he did not have a full set of plans, an item that Complainant refused to provide him. Later, an inspector came to the home and, finding no one living there, left inspection documents for Complainant. Respondent also prepared an estimate of the cost of obtaining a permit. For these reasons, the Administrative Law Judge finds no violation against Respondent regarding the obtaining of a permit.

Bamboo flooring

The Third Directive states that the bamboo floor is buckling. Investigator Gunstra testified that he saw that it was “cupping”, referring to the raised edges of the bamboo planks. The condition is caused by the expansion of the boards as the weather changes. For this reason, humidity and temperature control are recommended for the proper care of bamboo and other wood floors. Complainant argued that her family likes to keep the home at about 85 degrees and Respondent should have acclimatized the wood for their lifestyle. However, the evidence established that when Respondent acclimatized the wood in October 2015, he was only able to get the home to about 77 degrees, which was not as cool as is generally recommended. This fact defeats Complainant’s allegation that Respondent did not acclimatize the wood to a warmer home. Even if he had acclimatized the wood to 80 or 85 degrees, Complainant would not prevail because the greater weight of the evidence established that it was the wide variation of temperatures throughout the year that most likely caused the damage. Because the home was cold in the winter during the winter inspection, it does not appear logical or likely that Complainant kept the home near 85 degrees year around. Considering the clear and overwhelming evidence that Complainant was extremely focused on cutting costs, it appears most likely that she was trying to save money on energy costs, which is consistent with the other evidence supporting Respondent’s defense. Therefore, Complainant did not establish any failure on Respondent’s part to acclimatize the wood properly. Rather, she was clearly saving money on heating and cooling by allowing the temperature in the home to fluctuate greatly throughout the year. Complainant testified that her family prefers the home to be between 80 degrees and 82 degrees in the summer, but the evidence at hearing was clear that the family does not live in the home. The uncontrolled fluctuation in temperatures inside the home is what most likely caused the floor to fail. This idea is consistent with Complainant’s own testimony that the buckling was worse in September and October and improved before she took the photos in Exhibit 17. Clearly, the conditions in the home were causing the floors to expand and contract to a noticeable extent, which proves by Complainant’s own admission the cause of the failure.

The flooring inspection report that Complainant offered into evidence, does not carry sufficient weight to outweigh Respondent’s defense either. It was based on Complainant’s representations as to the temperature of the home and does not take into account the fact that the home was cold in December, indicating that the family does not control the climate in the home, most likely because no one is living there. As noted several times herein, Complainant’s testimony was simply not credible, so it cannot be determined what information the flooring inspection report was based on. Perhaps this is why the expert failed to account for the effect of the wide fluctuation of temperatures in the home. For these reasons, the report could not be relied on and should carry no weight.

In response to a comment that Respondent could have turned on the air conditioner in spite of the note, Respondent’s representative testified that the cover was also on the condenser and if he would have turned on the unit, it could have broken the unit and he did not want to have to replace Complainant’s air conditioner.

Complainant argued that Respondent didn’t tell her that she was supposed to be maintaining the humidity and temperature levels in the home to care for her floor. Respondent’s representative stated that when he installed the floor he left Complainant a lot of wood along with the warranty and specifications for the wood flooring that she had picked out for herself and he warned her about the effect of the temperature on the wood when she wouldn’t turn on the air conditioning. Complainant even included the information in her own exhibits. Later, Respondent’s representative testified that Complainant would have known that the bamboo required climate control because Respondent had to let the wood stay in the home with the air conditioner on for a full week, trying to get it below 78 degrees as recommended by the manufacturer and Complainant was told that after that the home would have to be climate controlled. The Administrative Law Judge finds no violation on Respondent’s part for the failure of Complainant’s floors because the greater weight of the believable evidence at hearing established that the damage was most likely caused by Complainant’s neglect and not by Respondent’s installation. Caring for the floors after a proper installation was Complainant’s obligation, not Respondent’s and if Complainant’s family prefers to live in a poorly controlled environment, Complainant should not have chosen to install bamboo flooring.

Complainant also testified that her floors were not level. No evidence was presented to support her claim and the abundance of evidence that Complainant failed to maintain the environment accounts for the deficiencies in the floors.

Baseboards cracked/Trim and quarter round not installed

The Third Directive, Item 3, found that some baseboards were cracked and the trim and quarter round referred to in the contract between the parties had not been installed.

Regarding the cracking to the base boards, Respondent’s representative maintained that the failure to maintain the climate and humidity in the home had the same effect on the baseboards. Respondent argued that Complainant’s failure to care for her floors properly voided her warranty. The Administrative Law Judge finds that the greater weight of the evidence at hearing established that the baseboards were most likely cracked due to the negligence of Complainant and Respondent should not be charged with a violation.

Regarding the trim and quarter round, Investigator Lawton testified that he found it to be a violation because it was called for in the contract. He did not dispute that the installation was appropriate, as Respondent argued. Respondent’s representative testified that the trim and quarter round are appropriate when the existing baseboards are utilized. Because Complainant had new baseboards, this was not required. This fact was undisputed at hearing. Respondent argued that trim and quarter round were included in the contract to indicate that, when appropriate, they would be covered by the costs of the contract. The Administrative Law Judge finds that adding trim and quarter round to the existing work would not add any value to the home and, on the contrary, would detract from it, because the trim and quarter round are to be utilized to cover the unsightly results of using old baseboards. It is not poor workmanship to fail to install them. There was no evidence that Respondent refused to install the trim and quarter round in order to hold the project hostage and demand more money. It is simply ridiculous to install it unless called for. He stated that this information was clear in the estimate. However, the Administrative Law Judge finds that the contract is not clear in this regard. By failing to state “as necessary and appropriate,” Respondent has allowed the contract to be unclear. Generally, a contractor should be required to provide everything that was promised in the contract to the customer. However, because doing so would actually decrease the aesthetics, and hence the value, of the item, it was not shown to be a workmanship issue. The problem arising from the contract and there being no harm to the homeowner, the Administrative Law Judge finds that under these unique circumstances, the problem is best addressed by the Registrar of Contractors when it takes action on the appropriateness of Respondent’s contract. Although the contract issue was not listed in the citations in this matter, information in the file indicates that the Registrar has already initiated action on the sufficiency of the contract. Therefore, the Administrative Law Judge finds that Item 3 of the Third Directive was not a violation of any of the legal authorities cited in this matter.

Transition strips

Transition strips from the wood flooring to the other rooms were not installed. Respondent’s representative testified that he was waiting for Complainant to install the flooring for those rooms and does not generally install transition strips when the floors are unfinished. Complainant did not establish that she requested them to be installed prior to completion of the flooring. It does not appear reasonable to install a finish item when the floors are unfinished unless the customer requests it. According to the contract, Respondent was to do all floors but the bathrooms, and photos show that the bathroom floors were not completed by Complainant. Therefore, Respondent’s failure to install transition strips prior to the floors being finished should be not be considered a violation at the time that it was left undone. Since Complainant changed her mind and was not going to finish the bathroom floors, it appears, by the time the Third Directive was issued, it was appropriate to require Respondent to install them at that time. According to the testimony of Investigator Lawton, transition strips are part of a proper installation and, because a change in height between rooms is an obvious trip hazard, his testimony makes perfect sense. The Administrative Law Judge finds that the greater weight of the evidence established that it was appropriate to include the transition strips in the Third Directive. Because it is a minor issue that would be considered part of a punch list, the Administrative Law Judge finds that it is not a workmanship violation in this case. Further, for reasons that are set forth below, the Administrative Law Judge is prohibited by law from finding a violation against Respondent for failing to do corrective work either.

Flower Pot

The First Directive ordered Respondent to correct the problem of a flower pot that was broken during construction. Respondent’s representative testified that Complainant broke the item that held the gate open so they used the pot because Respondent was not given a key for the gate, only for the door. As a result of being used this way, the pot broke. Respondent’s representative stated that Complainant demanded that he replace or repair it and he said he would. He stated that he could not find a replacement because it was so old, so he took it home and repaired it himself. This was not sufficient for Complainant because it did not match another pot like it. No evidence was offered to show that Complainant offered Respondent an alternative to using the pot or a key to the gate. Respondent’s representative estimated that it would cost about $145 for a similar new pot. A photo of the pot was admitted into evidence. It does not appear to be unique, and because it is old, it would not have the same value as a new pot. The Administrative Law Judge finds that Complainant was responsible for the loss by failing to offer full access to the home while she was gone or offer another method of keeping the gate open, that the likely value of the pot, due to its age, is negligible, and that no violation should be found against Respondent.

Paint on master bath vanity and island cabinet/other paint

The First Directive ordered Respondent to correct the master bath vanity and island cabinet in places where the paint was rough. Respondent’s representative testified that he sanded and repainted the area with two new coats of paint. On a later inspection, it was found that there was still some paint on the hinges. Respondent’s representative admitted that he was not aware of the problem because it may have been some splashed paint. He stated that he didn’t see it and that the hinges are actually hidden on those doors. However, he argued that he could have corrected it if Complainant had given him reasonable access.

The Third Directive stated that the finish on the vanity cabinet, which is paint, is not to standards and that they are not installed correctly. Respondent’s representative testified that he does not know how they are not installed correctly because no further information was given on that item; however, the finish on the cabinet was paint and he had already sanded and re-painted it in response to the First Directive. He said that the lack of climate control in the home affects the way interior paint dries and this is most likely the reason his repair might not have held. When Respondent’s representative talked to Complainant about turning on the air conditioner, she refused, saying that she was not going to waste the money. Later, Respondent’s representative testified that he told Investigator Gunstra with a picture of the window that Complainant had kept open and explained these conditions were not proper for interior paint. He noted this problem several times as he testified about all items concerning the paint. He stated that at temperatures at or above 80 degrees, the paint dries rough, it hurts the wood, and it delaminates glue. He also stated that heat cracks the mud and affects the texture of drywall. He offered photographic evidence that the home was 85 to 87 degrees for possibly every day that he worked on the First Directive. Complainant covered the air conditioner so that it would be damaged if Respondent turned it on and he did not want to be responsible to pay for a new air conditioner. Complainant also left a note not to turn on the air conditioner. Complainant stated that the note was not specifically for Respondent, but her testimony was not credible. The weight of the evidence was very clear that Complainant refused all requests to turn on the air conditioner so that Respondent could do the corrective work on the First Directive.

The First Directive, Item 5, identified paint in areas that was thin and did not cover the surface. Respondent’s representative testified that he attempted to correct the issue but the home was so hot he was actually taking paint off as he was trying to paint.

Arizona law prohibits the issuance of citation for failure to meet workmanship standards on items that have been subjected to neglect, modification, or abnormal use. Therefore, the Administrative Law Judge finds no violation on these items.

Drywall issues

The First Directive found, “Several drywall repairs are not sanded properly and are not painted. Items to be painted per contract, written change orders, or verbal agreements.” Respondent’s representative testified that this concerns an area on the back side of the fireplace between the two cabinets. He stated that this area had been damaged so Respondent repaired it to come close to what the other walls looked like, but Respondent did not do Complainant’s other walls. Respondent’s representative stated that in his opinion it is a good match but that there may be differences in the appearance because of the different ways that different drywall installers may move their hands. He also testified that the extreme heat in the home also affects drywall. He agreed that he did not paint this area, but he said that this was at Complainant’s request. Photos of the area taken by Investigator Gunstra show that the drywall was substantially different than the rest of the home and that it would be a very minor matter to sand it down to appear similar. Complainant has established a workmanship violation.

Fireplace cabinets

The First Directive stated that the fireplace cabinet doors are chipped on the edges. This item appears to have been corrected because it did not appear on the later directives. However, the Third Directive, Item 9, states that the fireplace cabinets (interior?) are not to standards for finish. Respondent’s representative testified that the wood cabinets also suffer from poorly kept environmental conditions. He said that products made for the interior of a home are less toxic but more sensitive to environment and if you expose them to outdoor conditions (by not using heat and air conditioning when appropriate) “they will fail.” He also stated that he took pictures of the thermostat to document the environmental conditions in part because he knew it would affect the floors, “but more importantly, all my wood projects, every single surface will be rough to the touch, because when it gets hot in pulls the moisture out of the wood, especially if it’s been painted with an interior coat of paint.” In response to the question as to whether this is the reason the same type of issues kept coming back, he stated he sanded the areas with a fine grain sand paper, but they would find issues with the corrective work as soon as only two weeks later due to the environmental conditions. Because of Complainant’s interference with the corrective work by her refusal to control the environment in the home, and because State law prohibits the issuance of a citation for poor workmanship on items that have been subjected to neglect, modification or abnormal use, the Administrative Law Judge finds no violation.

Fireplace bookshelves

Item 12 of the First Directive states that “fireplace bookshelves are to be installed per contract, written change orders or verbal agreements.” Respondent’s representative testified that this was completed.

Complainant argued that the fireplace doesn’t look the way she envisioned and the shelves should be glass. In support of her argument, she offered photos of other fireplace shelving units and an email in which she informed Respondent that she wanted glass shelves in the upper portion of the bookshelf. Nothing in the contract specifies that the shelves would be glass. Respondent’s representative testified that if Complainant had shown him the photos that represented how she wanted the unit to look, he would have bid the project so they came out that way. He also testified that they did discuss using glass shelving and Complainant ultimately did not want the glass shelves due to the cost. Complainant established no violation.

Hall linen closet doors

The First Directive, Item 4, stated that the hall linen closet doors don’t open properly and the hinges are missing some screws. Respondent put in the screws. Respondent’s representative testified that the problem with the doors is that the closet is a “linen closet that sits on top of the air handler so there’s no air vent for the air to get out.” Due to the air pressure in the area because of the lack of a vent, when you close one door, the other pops open. He stated that if you close the closet doors gently they will stay closed.

Investigator Gunstra opined that the proper correction is to use hardware with stronger magnets. However, Respondent’s representative testified that the hardware he used was almost identical to the hardware Complainant wanted him to use. He said that Complainant wanted Respondent to use the hardware that had been on the doors before, but when she was unable to locate it, she would not provide Respondent with new hardware. Consequently, Respondent used hardware that was similar and appropriate for the doors in his opinion. While the layout of the home may have affected the use of the closet doors, as a professional contractor, Respondent had the knowledge and ability to find more appropriate hardware, even if he had to use a type of hardware not generally intended for closet doors, to make his work function in a reasonably useful manner. As it appears that this would correct the issue, the Administrative Law Judge finds that it is a violation, correctable by changing the hardware. However, as noted below, no violation for failure to correct the issue is recommended based on due process grounds.

Hole in kitchen ceiling

The First Directive found, “Hole in kitchen ceiling not repaired where existing light fixture/sire was removed”. This item was not discussed at hearing except that Respondent’s attorney commented in the course of moving through the directives, “Okay, you complied with Item 8 . . . “ Complainant did not dispute the issue. Because it appears to be a punch list item that was corrected, it would not be proper to find at this point that it is a violation, though it was appropriate to include it in the directive.

Master bath towel bars and tissue holder

The First Directive found, “Master bath towel bars and tissue holder not installed. Items to be installed per contract, written change orders or verbal agreements.” Respondent argued and the evidence confirms that only one towel bar and one tissue holder were provided in the parties’ contract for the master bath. Respondent’s representative testified that Complainant had requested that Respondent return the towel bar and tissue holder as part of the hardware she wanted returned to her, so Respondent returned it. But when Complainant included it in her complaint, she wanted Respondent to purchase items that she chose for, he thought, over $100 each. Respondent purchased some similar items and installed them. He said this became a point of contention because Complainant kept wanting items that she would not pay for and already owed over $5,000 for add-ons that she refused to pay.

Respondent’s attorney noted that the investigator made a note that the hardware was extremely loose, but Respondent’s representative testified that they had to be installed with toggle-bolts because they did not line up with the studs, and when you install them with toggle-bolts, they have to be flush against the wall. He said each toggle-bolt can hold about 50 pounds.

Investigator Gunstra was a credible witness with no stake in the outcome of the hearing. Therefore, his notation that the hardware was loose is almost unassailable. On the other hand, the way toggle-bolts are used to install a towel rack gives rise to little doubt that it is necessarily flush against the wall after installation. No damage to the surrounding drywall is in evidence, but it was established that Complainant’s testimony was not reliable. Given this set of facts, the only logical conclusion is that someone intervened and readjusted the towel bar and toilet paper holder in a manner that made them come loose. While there is no evidence that this was done intentionally, it is not Respondent’s responsibility. Arizona law prohibits the Registrar of Contractors from issuing a citation for failure to meet workmanship standards if the work has been subject to modification. Therefore, the Administrative Law Judge finds that it would not be proper to find a violation.

Complainant argued that the hardware used by Respondent was not the hardware she chose; therefore, she argued, the installation was done without her consent. Nothing in the contract specifies that Complainant would choose the hardware, only that it would be new. Complainant offered no legal basis for finding a violation based on Respondent using new hardware similar to but less expensive than the hardware she chose.

Closet light switch

The First Directive found that a closet was missing a light switch. As with the hole in the kitchen ceiling, this issue was not addressed at hearing except for Respondent’s attorney’s passing statement that Respondent corrected it. Because no evidence was presented to show that the project was completed before Complainant filed her complaints and because this item was minor enough to be part of a punch list, the Administrative Law Judge found no violation.

Toilet installation

Each investigator found toilets that appeared crooked. Photos of the home’s two toilets were taken by Investigator Lawson. By the time the photos were taken, the hall bath toilet appeared to be straight and a note on the photo indicates that Investigator Lawton was also unable to determine that it was crooked. Although Investigator Gunstra opined that it was still slightly crooked by perhaps 1⁄4 inch, this was not established by the greater weight of the evidence. The photos of the other (master bath) toilet show that it is very slightly askew in relation to the wall behind it. In viewing the photo of this toilet, Respondent’s representative argued that it appeared straight to him. The Administrative Law Judge finds that the master bath toilet was slightly askew, which would be a violation of the workmanship standards. Considering that Respondent’s representative testified that fixing the other toilet took about 1 hour, a similar amount of time should address this matter as well.

Ceiling scrape

Complainant complained that Respondent left a 3 to 4 inch scrape on the ceiling near the fireplace. Respondent’s representative testified that when he went to correct the issue, it either wasn’t there or he wiped it off. He could not recall it being there. No testimony from the two investigators indicated that it was not corrected. The matter is too trivial to find a violation on Respondent’s part.

Pencil mark on ceiling

Complainant complained that Respondent left a pencil mark on the ceiling near a recessed light. Respondent’s representative erased the mark. The matter is too trivial to find a violation on Respondent’s part.

Missing and improperly connected phone lines

The Second Directive stated that the kitchen phone line runs along the exterior of a wall (inside the cabinets) and that industry standard is to run such lines inside the wall or through the ceiling. Respondent’s representative testified that he agreed to move a phone jack further down a kitchen wall at Complainant’s request. He said he did not charge her but he did it because they’d agreed that she would pay for it. He said there is a brick wall in the kitchen where the original phone line was and the telephone line originally went through a hole in the wall from the outside. He stated that when he moved the phone line, he moved it by running the extension inside the kitchen cabinets. He stated that Complainant agreed to this approach, and, as noted above, his testimony was significantly more believable than Complainant’s. Considering the age of the home (estimated to be built in the 1950s or 1960s) and the existing unique conditions of the area, running the phone line inside the cabinets where it would be out of sight, appears to be a reasonable alternative to making another hole in a brick wall or trying to run a line inside a brick wall. The evidence at hearing did not establish a violation.

Investigator Gunstra also found that the kitchen and dining room phone lines did not appear to be connected. Respondent’s representative testified that it was not within the scope of the contract to connect the phone lines and that this is done by a telephone company. He stated that he did move the kitchen line at Complainant’s request, but only did so because he is “a nice guy”, not because he agreed to do it as part of the contract. Complainant argued that because the contract refers to “Relocation of all electrical and find new location for oven against wall” when referring to adding the island in the kitchen means that the contract covers the phone lines, HDMI and coaxial cables as well. Complainant’s argument is ridiculous because not reasonable person reading that section of the contract in context would believe that Respondent had included connecting telephone lines and dealing with HDMI and coaxial cables in another room of the house was priced and bid in the same line as installation of a kitchen island. The contract does not provide for installing or moving telephone jacks.

The Second Directive, Item 5, states that there is an existing phone jack concealed behind the baseboard next to the sliding door. Investigator Gunstra testified that he added this item based solely on Complainant’s statement to him because he could not see behind the baseboard. Complainant offered a photo of the baseboard with a sticker next to it to show where the phone line was. She stated it was there because she remembered it was there.

Respondent’s representative testified that he does not recall a phone jack being there and the industry standard and code for phone jacks is that they should be at the same height as outlets, which would be 16 inches from the floor to the top of the box. He stated that the baseboards he installed for Complainant are six inches in height, far below where outlets and jacks are generally found. The Administrative Law Judge finds that it is highly unlikely that a phone jack existed in the home within 6 inches of the floor and that this is most likely another example of Complainant’s lack of credibility. Indeed, Complainant’s own exhibits shows that another phone jack in the home is installed above an electrical outlet. Nothing in the evidentiary record explains why a phone jack would be placed by the floor when other phone jacks in the same home exist at a normal height. The Administrative Law Judge finds no violation regarding phone lines or jacks.

Dining room fan

Item 6 of the Second Directive states that the dining room fan “is not operable by wall switch as it was prior to Respondent’s work.” Respondent did not dispute this statement, but its representative testified that he informed Complainant that she would either have to have a new switch installed or use the pull chain because she needed a switch for the new pendant lights he installed for her. Respondent’s representative’s credible testimony was that Complainant opted to use the pull chain rather than pay extra money to install another switch. The contract lists an estimate for “estimated new electric insert cost and install: $800-$1850.” This may relate to the fireplace wall area, but the estimate is not carried over to the project estimate so no price for this item is part of Respondent’s duties under the contract. The contract calls for wiring for can lights in the kitchen and living room areas, so, by process of elimination, it is clear that the pendant lights were installed pursuant to a separate agreement between the parties, referred to as “add-ons” at hearing. A photo in evidence shows a pendant light in front of the fireplace. So it appears from the evidence that the dining area referred to in the directive is the space in front of the fireplace. Based on Respondent’s representative’s testimony as supported by the lack of any evidence that adding a light switch for the pendant lights was part of the contract, the Administrative Law Judge finds that Complainant failed to establish a violation.

Terminals and cover plates for HDMI and Coaxial cables

Respondent acknowledged that this was not completed because Complainant would not pay for it and he was not going to do it without getting paid for it. He said that this was not in the original contract so he was not required to do it unless paid. Nothing in the contract references HCMI or Coaxial cables. Therefore, Complainant has failed to establish a violation.

Receptacles over countertops in kitchen do not meet code and wall space near phone jack must have outlet per code

Respondent’s representative testified that the wall was not two feet wide so it is not required to have an outlet per code. Respondent’s testified that he was very confused by this part of the directive and did not understand what was called for. Complainant offered no legal authority that required Respondent to bring the home up to current code standards on any item that he did not contract to work on in the home, nor did she offer into evidence any code provision to support Investigator Gunstra’s finding. Nothing in the contract calls for Respondent to do work on phone lines or to install new outlets. Nothing in the contract indicates that Respondent was hired to bring the entire home up to current code requirements. Complainant has the burden of proof. Therefore, no violation was established on these items.

Drain line to dishwasher

Investigator Lawton witnessed the fact that the drain line to the dishwasher had been cut at some point. Respondent’s representative acknowledged that a subcontractor was working in the area but he argued that there was no reason to cut the drain line. However, there would be no reason for anyone to cut it, and yet it was indisputably cut. Clearly, it must have been cut by accident and, since Respondent was working in the area, the greater weight of the evidence established that it was most likely done by someone working for Respondent. Therefore, the cut drain line should be considered a violation.

New Cabinets to match existing

Investigator Lawton found that the new cabinet added by Respondent in the kitchen did not exactly match the existing cabinets. Respondent’s representative testified that it is never a perfect match when trying to match a new wood stain to an old one but he found that the match was almost perfect. He stated that he had a custom stain professionally made to match the existing cabinets. Respondent’s representative testified that the wood was different and, therefore, a match can never be perfect, but he matched it as closely as possible. Due to the age of the cabinets, the weight of the evidence established that it would be impossible to make a perfect match in the color. Indeed, photos of the kitchen show that the original cabinets are so old that the stain has rubbed off in several places. Matching stain with varied signs of aging would be very difficult. Complainant pointed out several differences between the old and new kitchen cabinets and the island. During Respondent’s rebuttal, however, Respondent’s representative testified that he used prefabricated cabinets at Complainant’s request due to the cost of making an island and cabinets that matched the kitchen exactly and he did not paint inside them because Complainant did not opt to have him do so. The contract indicates that Complainant had not opted to paint the cabinets but it did quote a price to do so. Although the cabinets do not match the existing kitchen in various ways, the evidence was very clear that Complainant made choices on every item that Respondent installed, and Respondent’s representative’s testimony was credible that, due to costs, Complainant opted not to have an exact match to the cabinets and did not opt to have Respondent paint the insides of the cabinets. Therefore, it was not established that the kitchen cabinet construction constitutes a violation of workmanship standards. Nevertheless, Respondent gave Complainant a credit of $500 when she complained that the cabinets had not been painted based on her own misreading of the contract.

Faucet leaking

The Third Directive found that the faucet in the master bathroom was leaking. Respondent’s representative testified that the water never leaked while he was at the home, but he later learned that Complainant had had an issue with the water main and had a plumber come to the home, whose work may have affected the faucet. Respondent argued that the problem was caused by an outside influence that was not under his control. Photos show that the water was leaking through the components of a new faucet that Respondent installed. It appears most likely to be manufacturer’s defect, which should be Respondent’s responsibility to replace, though it was not established to be a workmanship issue but a materials issue and properly included in the warranty. It was not established that having a plumber work at the home was likely to cause the malfunction in the faucet shown in the photograph. The evidence at hearing did not establish a workmanship violation in that Respondent’s work was not shown to be the cause of the issue, but it is appropriate to include such matters in a directive as a warranty of the contractor’s materials. However, when the matter came to hearing, the evidence shed new light on the matter, because Respondent’s representative, who had been proven on numerous occasions to be a much more credible witness than Respondent, testified that he did not purchase the faucet, Complainant did. Respondent’s representative testified that if he had been aware of the manufacturing flaw in the faucet he would have sent it back. Based on the new evidence at hearing, no violation is found.

Access issues and time to correct

Respondent’s representative testified regarding the trouble he had completing the work in the time given to him in the directives. He stated that Investigator Gunstra told him that he could have additional time, but Investigator Gunstra could not confirm this because he would have put such a statement in writing and he could not find any indication in the file that he had done so. Respondent offered a photograph from June 25, 2016 showing that a city inspector had left notice that he had come on June 23, 2016 and could not get in. Respondent’s representative also stated that he had been unable to get into the home when he went on June 19, 2016 thinking he would be allowed to work. Referring to a statement by Complainant that Respondent had been allowed in the home for the entire month of August, he stated that he did have some access in August 2016, but not after August 19, 2016. However, he acknowledged that he did not attempt to do the corrective work in the Third Directive. He said he disagreed with some items but he also did not attempt the corrections because when he was alone with Complainant she yelled at him and called him a liar, ostensibly disrupting his work.

While Complainant clearly did allow Respondent some additional time to work on the First Directive and Second Directive in August, the evidence indicated that Respondent did not have sufficient time to obtain building permits because the city inspector did not even have access to the home and did not come within the time allowed in the First Directive, which offered a deadline 6 days before the city inspector left his note.

The Third Directive was issued during a time period that Complainant had requested that it be delayed because she would not be available to give access. The amount of time given was not reasonable because Respondent had only 4 days to complete the work at from the time that Complainant asked that it be sent.

Respondent also testified that he could not have corrected the floors or the cabinets in the time allotted in the directives.

The First Directive, Second Directive and Third Directive allowed Respondent 14 days from the issuance of the directives to provide written proof of compliance (as opposed to completing the work in that time). Applicable law requires the Registrar of Contractors to allow a reasonable time to complete the corrective work in its directives, with a minimum allowance of 15 days. This did not meet the requirements of the statute because it did not allow a minimum of 15 days for compliance. Assuming that providing proof takes time to accomplish, which a reasonable person would find, then the directives did not even allow 14 days for compliance.

To give an example of counting the time: The First Directive was issued on June 2, 2016 and required proof of compliance by June 16, 2016. If the directive had given Respondent until June 3, 3016, that would have been one day. If it had given Respondent until June 4, 2016, that would have been two days. A final date of June 5th would make it three days, and a final date of June 6th would be four days. If the directive was due on June 7th, Respondent would have had 5 days; if due on the 8th, Respondent would have had 6 days. If the directive had been due on the 9th, Respondent would have had 7 days. If it had been due on the 10th, Respondent would have had 8 days. If the deadline was on the 11th, 9 days would have been allowed. If the deadline was on the 12th, 10 days would have been allowed. If the directive had been due on the 13th, Respondent would have had 11 days. If it was due on the 14th, that would make it 12 days. If it had been due on the 15th, Respondent would have had 13 days. But it was due on the 16th, which means that Respondent had 14 days. And the last day would have had to have been shared with the time that it takes to decide on what proof would be appropriate to submit to the Registrar, finding that proof, and delivering it. Therefore, without even considering whether or not the time allotted to Respondent was reasonable, the Administrative Law Judge is forced to conclude that Respondent was not allowed the minimum amount of time he was entitled to by law under all three of the directives. The Administrative Law Judge finds that it would violate Respondent’s due process rights to impose a violation without affording it all of the protections guaranteed to him by the very statutes that the Registrar of Contractors must use to enforce those violations.

Allegations of overcharging and/or refusal to complete the project for the agreed upon price

Complainant alleged that Respondent overcharged her. This issue was not included in any of the directives. Respondent alleged that Complainant demanded a lot of add-ons and insisted that they should be included in the price. Statements to that effect by Respondent’s representative were objectively proven to be true in an email exchange on October 22, 2015 between Complainant and Respondent’s representative’s wife. In that exchange, Complainant stated that a backsplash for the master bath should be included. The contract does not include a price for a backsplash for the master bath. The response to the email makes it clear that this was far from an isolated incident and points out that Respondent’s representative’s wife spent a significant amount of unpaid time helping Complainant shop. Respondent’s representative acknowledged at hearing that Complainant and Respondent agreed to many changes to the contract, including “the types of switches in the bedrooms, [an upgrade to a switch for] one of the bedroom closet lights . . ., changes to the size and dimensions of the fireplace cabinets, ...changes to electrical locations,...changes to the fireplace and reworking the stone, and demo of stone that she did not like, a multitude of things.” Respondent’s representative estimated that over $5,000 of add-ons have not been paid by Complainant. Respondent offered no signed change orders and did not argue that he is seeking payment from Complainant through this forum. Respondent did establish by the greater weight of the evidence that he performed additional work at Complainant’s request that was not reflected in the contract. On the other hand, in the hopes of establishing that Respondent had overcharged her, Complainant offered into evidence a list of items that she believed were overcharges. It is significant and revealing that Complainant did not acknowledge any credits or add-ons in her summary. Complainant’s allegations that she overpaid on the contract clearly did not encompass all of the charges that she may have been responsible for.

The evidence on this alleged violation also established good cause for Respondent’s refusal to complete some items in the directives without being paid. The Administrative Law Judge found no violation on Complainant’s allegation of overcharging and no violation on the allegation that Respondent refused to complete the contract work for the price stated therein.

Allegations by Complainant

Complainant alleged that Respondent did not install the countertop she wanted in the hall bathroom. She stated that she wanted and paid for a square edge style that she communicated to Respondent. The contract called for Complainant to choose the hall ball counter and the text from Respondent indicated that he consented to her choice at the time of the text exchange, yet another type of counter was installed. She argued that Respondent failed to follow the plans by not installing her chosen countertop. Considering that Complainant was not credible and that throughout the course of her complaints to the Registrar of Contractors, she continually added new requests and complaints, it is easy to conclude that it was Complainant who changed her mind about the countertop. As expected, Respondent’s representative testified that he did not install a countertop because Complainant did not want to pay the cost of the granite ones she had chosen. Respondent did not charge Complainant for installing the countertop because it remained as it had been. Nevertheless, Respondent’s representative learned that his granite subcontractor paid $300 to Complainant because she demanded it.

Complainant did not establish any violation regarding the hall bathroom countertop.

Complainant argued that the master bath vanity had gaps inside the cabinets and between the doors. Photos of the unit do show some gaps. Respondent testified that the backsplash on the unit, that he did not install, proves that someone else was working in the area after he completed his installation, but he did not install it like that. Complainant failed to establish a violation.

Despite the fact that the contract clearly offered only a bid on finishing the concrete flooring, Complainant proposed the ridiculous idea that Respondent failed to finish the floor with a stain. Her position in the matter clearly exposes Complainant’s ulterior motives in filing her complaints in this matter. No violation was established.

Complainant also proposed that because the contract states that it was Respondent’s responsibility to obtain the permits, she should be given a credit for the estimated cost of obtaining a permit, even though she clearly was not charged for the cost of obtaining a permit. Here again, Complainant merely revealed her true motives by making such an outlandish and overreaching proposal. No violation was established.

Complainant argued that she should have received various credits. She also made other various avowals, including the ridiculous suggestion that Respondent placed the note on the thermostat. However, Complainant’s lack of credibility and her apparent scheme to involve the Registrar of Contractors in an obvious attempt to defraud Respondent rendered the remainder of her testimony irrelevant and unsupportable.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors for 2016A-1101-ROC alleged potential violations of A.R.S. § 32-1154(A)(2), (3) (specifically A.A.C. R4-9-108), (8), and (22). The Citation for 2016A-3960-CHS-ROC alleged potential violations of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108) and (22).

A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative.

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108.

A.R.S. § 32-1154(A)(8) provides grounds for suspension or revocation of a contractor’s license for failure to complete a project for the price stated in the contract, or any modification thereof.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time.

The evidence in this matter supports a finding of workmanship violations in some very minor areas; the dishwasher drain line, a slightly crooked toilet in the master bath, an improper choice of hardware for a linen closet, and a small area of drywall in need of sanding. However, much more concerning is the fact that it becomes more and more clear upon reviewing this matter closely that Complainant brought the complaints in this matter for the purpose of taking advantage of Respondent. While the overall purpose of the Registrar of Contractors is the importance of ensuring that the structures around and in which we create our society can safely withstand the test of time, it also has a duty to protect public services from being dragged into nefarious schemes, such as the one clearly developed and forwarded by Complainant. In this case, because the violations by Respondent were minor and the fraud major, a reasonable balancing of the public’s interest militates in favor of dismissing the complaint, both to stop Complainant’s inappropriate actions in this matter and to send a message to the public regarding complaints filed in bad faith.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaints in this matter be dismissed in their entirety. If the Registrar does not find it appropriate to dismiss this matter, the Administrative Law Judge recommends that Respondent be found to have violated A.R.S. § 32-1154(A)(3) on the three minor issues noted above, but, due to their nature, no disciplinary action is recommended.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, March 30, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors