ALJDEC decisions subject to certification as final

2016A-291-ROC · Registrar of Contractors · 2016-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 23, 2016 APPEARANCES: Complainant Carrie E. Wiesley appeared on her own behalf. Shun James, Owner and Qualifying Party, appeared on behalf of Respondent Do It Rite Remodeling & Landscaping LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License No. 275966 to Do It Right Remodeling & Landscaping (Respondent). On or about November 30, 2015, Carrie E. Wiesley (Complainant) entered into a contract with Respondent for a master bathroom remodel, including new plumbing for a toilet and shower, electrical for vanity and closet lighting, and framing for a closet. Prior to the work being performed, Respondent did not pull a permit for plumbing, electrical, or structural. After the project was completed, Complainant discovered numerous issues. On or about January 25, 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 Jack Grimm. On or about April 13, 2016, after a jobsite inspection, Investigator Grimm 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 May 4, 2016.

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

1. Permits not pulled - were told they were not needed. City permits needed for work related to Plumbing, Electrical and structure work. Obtain permit and comply the all codes and requests per the inspector for compliance and approval of inspections.

2. Shower door has been hung incorrectly 3 times. Correct out of plumb side panel and correct leaking door.

3. Wrong grout placed in shelves, not level and very rushed looking - sharp edges. Correct poorly placed grout and correct exposed cut edges with tile trim.

4. Closet shelving missing off of his assumption. Complete shelving and paint above three (3) closet rods.

5. Sinks don't hold water. Correct stoppers in master bath vanity sinks.

6. Holes filled/paint in room, coming off window, around toilet, behind vanity. Correct any poor painting including behind toilet and under right vanity.

7. Caulking touchups everywhere. Re-caulk and repaint base were needed.

8. Step into shower sharp, not level. Correct sharp edges and high pebbles at curb to shower.

9. Grout holes in flooring Correct all grout holes in tile flooring.

10. Flooring not level. Correct hump in floor at master bathroom, believed to be re-poured concrete sub floor.

11. Indent in closet door wall. Correct drywall texture and paint at master closet jamb entry.

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

On or about April 19, 2016, Shun James contacted Investigator Grimm regarding the written directive. Mr. James stated he did not receive the Directive because he had moved. Investigator Grimm sent a new copy of the written directive to Respondent. Following the issuance of the written directive, Respondent attempted to obtain a permit for the project. On or about April 30, 2016, Mr. James contacted Complainant to arrange for payment of the permits. Complainant would not pay for the permits online and did not pay for the permits until May 2, 2016. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(2); 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 at the hearing that the permits had been pulled, but that the project had not yet been green-tagged by the city inspectors. Complainant stated that Respondent sent someone else to look at the project and determine what needed to be done to repair the work, but that individual was requesting payment for that work. Complainant indicated she did not believe she should pay to correct work that Respondent did incorrectly in the first place. Complainant acknowledged that the contract was for $18,967.00 and that she had only paid $14,864.92 toward the contract, leaving a balance of $4,102.08 left to be paid on the contract. Mr. James testified that he was in the hospital for a period of time in January 2016, and was unable to work on the project. Mr. James also stated that he sent John Nash to Complainant’s home to see what work needed to be done to resolve the complaint, but Complainant would not allow him to do the work. Mr. James acknowledged that he had not been able to do the work, but that he wanted to finish the job. Mr. James testified that after getting the permits, he tried to get Complainant to sit down and talk to her about arranging the work and Complainant would not talk to him. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 12, 2016. Such prior License record reflects that Respondent’s License 275966 is current. Such prior License record also reflects that there was one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The evidence established that Respondent should have pulled plumbing, electrical, and structural permits for the project and failed to do so. Even after the permits being pulled, the project has not been green-tagged as of the date of the hearing. Therefore, Complainant established Respondent disregarded the specification of the building codes in violation of A.R.S. § 32-1154(A)(2).[1] 4. The evidence established that Respondent’s work was flawed as noted in the written directive. 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).[2] 5. The evidence established that Respondent did not pass the city inspection after pulling the permits and did not correct the workmanship issues raised in the written directive. 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).[3] 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. 275966 for a period of 3 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, September 12, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [2] 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.” 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.” [3] 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.”

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