ALJDEC decisions subject to certification as final

2016A-2070-ROC · Registrar of Contractors · 2016-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Flora Pennington James,

COMPLAINANT,

v.

All Right Builders Inc.,

License No: 207665

RESPONDENT.

No. 2016A-2070-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2016

APPEARANCES: Complainant Flora Pennington James appeared and was represented by Fidelis Garcia. Lee Price, Owner and Qualifying Party, appeared on behalf of Respondent All Right Builders Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

All Right Builders Inc. (Respondent) is the holder of License No. 207665 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 14, 2015, Flora Pennington James (Complainant) signed a contract with Respondent for, among other things, building an addition, installing cabinets and countertops, and moving a water heater.

On or about June 15, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Russell Reed. After a jobsite inspection, Investigator Reed 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 29, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Complete counter top. Ending of counter top does not have a finish.

Gap between doors in French doors leading to back yard.

Outlet in kitchen area is not covered.

Baseboards missing in areas.

Kitchen tile has excessive lippage.

Bath room floor where hot water heater was is not finished.

Painting is not completed in kitchen or master bedroom.

Master bedroom ceiling has damage.

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

Following the issuance of the written directive, Respondent attempted some repairs at the home. At the time of the repair work, Complainant signed off on the work performed. Respondent notified Investigator Reed that Complainant was satisfied with the repairs.

Investigator Reed contacted Complainant to confirm she was satisfied with the repairs. Complainant seemed displeased, but said she wanted Respondent out of her hair. A couple days later, Complainant called Investigator Reed and said she was not happy with the work.

On or about August 4, 2016, Investigator Reed performed a compliance inspection. At that time, Investigator Reed noted that the baseboards had been replaced, but none of the other items listed had been repaired to meet the Registrar’s standards. For example, the countertop had been installed, but was not finished on the end, the gap in the French doors was smaller, but was still there, the texture around the outlet in the kitchen did not match, the tile use to fill in where the water heater had been moved from was not the same size and did not match, and the ceiling patch did not match.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Complainant testified that she was not satisfied with the repair work, but she signed off on the corrective work because she wanted to get Respondent out of her hair. Complainant stated that she had paid $37,000.00 of the $40,000.00 contract price. Complainant also indicated that she had repaired some of the item in the directive such as the attic.

Mr. Price testified that after the Directive was issued, he attempted repairs and was told by Complainant that she was satisfied. Mr. Price stated that that he did not know about that Complainant was not satisfied until he received the Citation.

Administrative notice is taken of Respondent’s prior License record on November 14, 2016. Such prior License record reflects that Respondent’s License No. 207665 was first issued on May 19, 2015, and is current. Such prior License record also reflects that there was one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent’s attempts to complete the corrective work following the Directive being issued were not effective. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 207665 for a period of three days.

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, November 14, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors