ALJDEC decisions subject to certification as final

2016A-3038-CHC-ROC · Registrar of Contractors · 2017-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Lee Vollmer,

COMPLAINANT,

v.

Sonoran Elite, LLC, License No: 300255

RESPONDENT.

No. 2016A-3038-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 21, 2017 and April 26, 2017

APPEARANCES: Thomas Lee Vollmer (Complainant) appeared on his own behalf. Sonoran Elite, LLC. (Respondent) was represented by Fidelis Garcia, Esq. at the first hearing but his services were terminated before the further hearing. No one from Respondent appeared at the further hearing despite efforts to reach Respondent on the telephone.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant 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

Complainant is the owner/occupant of a residence located at 8945 East Stoney Vista, Sun Lakes, Arizona 85248.

Respondent holds Arizona Contractor’s License No. 300255.

On August 15, 2016, Complainant filed a complaint with the Registrar alleging that Respondent performed poor work and abandoned Complainant’s 203(k) loan rehab project. All told, the complaint contained approximately 20 items.

The Registrar assigned investigator Randy Cason to investigate the complaint.

Cason scheduled a jobsite inspection for September 6, 2016, which only Complainant attended. At the time of that inspection, Cason verified both poor work and uncompleted tasks.

On September 19, 2016, Cason sent Respondent a Directive from the Registrar which had a completion date of October 3, 2016.

On October 4, 2016, Cason was informed by Complainant that no work had been done and everything was “as is”. He therefore forwarded the file to the Registrar’s Legal Department for review.

On October 6, 2016, Cason was advised by his supervisor that he needed to start his investigation over because Respondent had changed its address with the Registrar but that new address had not been uploaded into the system and thus Respondent had not been afforded notice of the prior investigation.

On October 21, 2016, Cason conducted another jobsite inspection, which both Complainant and Respondent attended.

On October 26, 2016, Cason issued Respondent a Directive which stated:

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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 November 10, 2016.

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

Complaint

Complaint Item 4: “Abandoned task: The two can lights were not installed in the game room”

Complaint Item 5: “Abandoned task: The can light in the living room was not installed”

Complaint Item 6: “Abandoned task: The desk was not removed from the kitchen and wall repaired”

Complaint Item 7: “Abandoned task: The light was not installed in the ceiling fan”

Complaint Item 8: “Wall sharing the game and living room is not properly floated and finished (up to 3⁄4” gap in the wall)

Complaint Item 9: “Wall sharing the game room and kitchen not properly floated and finished (defects present above /below bar)

Complaint Item 10: “Over spray everywhere in the game room”

There is Drywall texture over spray on the flooring material in the game room and over spray on the entertainment center in the game room

Complaint Item 12: “Several floor transitions either broken, not adhering or miss fitted to the walls”

Transition flooring material is not properly secured down entering the family room, entering the kitchen area and entering the game room from the kitchen

Complaint Item 14: “Seal between the kitchen islands is the original and not replacement, it failing now”

Wood sub straight for kitchen island granite top is cut short at corner, repair to pony wall at sub-straight is not completed properly and Kitchen sink is not properly sealed and secured

Complaint Item 16: “Shower has multipole tiles miss-alignments”

Complaint Item 17: “Shower has multiple cracks in grout”

Complaint Item 18: “Shower floor grouting on two sides has a grout line up to 3⁄4” (they ran out of material, so they faked it)

Complaint Item 19: “Shower has areas where there is no grout at all and tile is chipped and cracked”

Complaint Item 20: “Tile that was replaced in kitchen is crooked and needs to again be replaced in proper orientation”

1st ADDENDUM COMPLAINT ITEMS LIST (from fax dated 8/23/16)

Addendum Complaint Item 1: “The wood laminate that meets the bathroom door has a defect. There are large gaps that was hidden by saw dust that now has settled out which has exposed the issue”

Addendum Complaint Item 2: “The framing inside the door was enlarged to 36” has a big chunk missing out of it. It was hidden view because was on the inside between the door and the wall”

Addendum Complaint Item 3: “The tile that was [to] replace the broken tile is not only crooked, it is broken as well”

2nd ADDENDUM COMPLAINT ITEMS LIST (from email dated 10/6/16)

Addendum Complaint Item 2: “The built in desk in the office space was damaged and pulled out of the wall with a crack running the entire connection point between the wall and desk. Desk is now not level indicating that it was damaged when the new carpet was installed”

Addendum Complaint Item 3: “The floor paneling in the game room where it meets west side of the patio door is poorly installed with a giant gap and a large cut”

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 November 6, 2016, Cason was informed that the parties had agreed to extend the Directive period to permit Respondent to do corrective work over a three-day period. Subsequently, Cason was informed by Complainant that Respondent had still not completed corrective work satisfactorily and had in fact done more damage.

On December 3, 2016, Cason conducted a compliance inspection and determined that Respondent was not in compliance with the Directive, Specifically, he found Respondent had only completed a couple of the addendum items, related to the gaps in the wood laminate that meets the bathroom door, securing the kitchen sink and fixing the gap in the floor paneling in the game room, but had not addressed the bulk of the issues. Cason therefore forwarded the file to the Registrar’s legal department for review.

On December 14, 2016, the Registrar issued Respondent a Citation. That Citation contained three 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)(12), “[f]ailure in any material respect to comply with this chapter,” specifically A.R.S. § 32-1158(B) listing the required elements of a contract. Charge 3 reflected 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.”

On February 21, 2017 following Cason’s testimony at a hearing convened at the Office of Administrative Hearings (OAH), the parties agreed that they would attempt to settle the matter through Respondent performing corrective work.

In late March 2017, Complainant informed OAH that Respondent had not conducted him to perform corrective work and, as such, he wished to reset the hearing.

Hearing was reset to April 26, 2017 and notice of that hearing was sent to Complainant and Respondent’s counsel.

On April 25, 2017, Respondent’s counsel informed the OAH that Respondent had terminated his services.

At that hearing, no one from Respondent appeared and the proceeding was delayed for 20 minutes to afford Respondent time to appear. Thereafter, the Tribunal telephoned Respondent phone number on record with the Registrar and left a voicemail with the telephone number of the hearing room. No one from Respondent called. Accordingly, Respondent did not participate in this hearing.

Complainant testified that Cason’s testimony and actions as detailed above accurately reflected the situation with Respondent. He said that nothing had changed since the compliance inspection despite Respondent having been given ample opportunity to correct the issues.

CONCLUSIONS OF LAW

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.

To warrant such sanctions by the Registrar, Complainant 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).

Credible evidence described at hearing and contained in the Registrar’s file established that Respondent did some work of questionable quality in Respondent’s home as described in the Directive. Respondent’s counsel conceded in a November 9, 2016 email that “work needs to be done to the shower in [Complainant’s] home.” Thus, Complainant established Respondent’s work on the complaint items specified in the Directive was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The face of the parties’ contract shows that Respondent violated A.R.S. §32-11158(B) by failing to give notice of Complainant’s right to file a complaint with the Registrar. Thus, Complainant has met his burden to prove a violation of A.R.S.§ 32-1158(B)

An A.R.S. § 32-1154(A)(22) violation is appropriate here given Respondent made inadequate effort to correct the workmanship issues contained in the Directive even after being given an extension of the Directive period and another opportunity after the commencement of the hearing to complete corrective work.

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. 300255 for a period of five (5) 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(E).

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, May 2, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors