ALJDEC decisions subject to certification as final

2016A-3112-CHC-ROC · Registrar of Contractors · 2017-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stephanie Matthews Mitzel,

COMPLAINANT,

v.

Tru Builders LLC, License No: 275722,

RESPONDENT.

No. 2016A-3112-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2017 with the record held open until November 6, 2017 to afford Complainant time to determine if she wanted to resolve the matter privately with Respondent.

APPEARANCES: Stephanie Matthews Mitzel (Complainant) appeared on her own behalf. Tru Builders LLC (Respondent) was represented by Max Christensen, its qualifying party and authorized representative.

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 303 East Ocotillo Drive, Phoenix, Arizona 85012.

Respondent holds Arizona Contractor’s License No: 275722. The license was suspended for nonrenewal October 1 to 8, 2015.

On August 18, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had contracted to build her a new house in 2013 and she moved in to the home in October 2014. The Complaint alleged that Respondent’s work was substandard in a variety of ways.

The Registrar assigned investigator Steven Lawton to investigate the complaint. Lawton testified that he arranged to perform an inspection on September 7, 2016, and notified Complainant and Respondent of the time and place of the inspection. Both Complainant and Respondent were present at that inspection. Lawton indicated that at the time of an inspection, he substantiated a number of Complainant’s allegations resulting in a Directive dated September 13, 2016. Respondent complied with the Directive.

Thereafter, Complainant filed an addendum to the complaint, adding items related to stucco repair, drywall, painting and caulking, leading Lawton to perform another jobsite inspection on November 1, 2016 and to issue another Directive on November 2, 2016.

Respondent complied with this Directive and the Registrar closed the complaint.

Subsequently, Complainant requested that her complaint be reopened because a crack had reappeared in the master bathroom.

On May 17, 2017, Lawton performed another jobsite inspection with both parties present. Complainant showed them the crack in the master bathroom that appeared to be stemming from a water leak and Respondent agreed to repair the drywall and find the source of the leak.

On May 17 2017, Lawton 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). 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 June 2, 2017.

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

. Drywall In Master bathroom is damaged again after repairs had been completed. Drywall now shows water damage and base board is also damaged.

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 July 13, 2017, Lawton performed a compliance inspection and observed that a hole related to the leak remained open and had not been repaired. He also determined that some tile still required repair. Accordingly, Lawton referred the matter to the Registrar’s legal department for issuance of a Citation.

On July 17, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 alleged “[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 alleged 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.”

Lawton performed a prehearing inspection on October 27, 2017 and observed that the only remaining issue not in compliance was an issue with the grout on the tile in the hallway area.

Hearing was convened at the Office of Administrative Hearings (OAH) on October 30, 2017.

Lawton testified consistently with the facts detailed above as did Complainant and Christiansen. Lawton noted that only the repair of the water leak and the wall in the master bathroom were at issue in this complaint. Complainant raised other issues, but Lawton stated they were not included in his inspection. He noted that these other issues would need to be the subject of another complaint which could then be assessed by the Registrar to ascertain if the items fell within the two-year statute of limitations from the date work was last done by the contractor on each item.

Christiansen testified that Respondent completed corrective work for all items on the May 17, 2017 Directive on May 26, 2017, within the Directive period, He said that Complainant’s husband did not inform him that another area on a perpendicular wall had been effected by the water leak Respondent fixed until July 2, 2017. He explained that after being notified of the problem. Respondent opened the hole Lawton observed during the compliance inspection.

Lawton testified that in his view a contractor was responsible for identifying all areas effected by a leak and should not wait for a complainant to notice issues. Complaint echoed this sentiment and said she had lost confidence in Respondent’s abilities as a contractor.

Because Lawton testified that his prehearing inspection revealed that only a small amount of tile grouting work needed to be done to resolve the items in the complaint, the undersigned held the record open until November 6, 2017 to give Complainant time to decide if she wanted to resolve the matter with Respondent through Respondent performing the work.

On November 1, 2017, Complainant informed the Tribunal that she wanted to proceed with the administrative process as she had lost faith in Respondent.

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. § 32-115.

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).

Undisputed credible testimony established Respondent performed substandard work when undertaking repairs to fix a crack in Complainant’s master bathroom. Although it appears Respondent found the source of the leak and repaired it, Christiansen admitted he did not think to check for other areas nearby that may also have been damaged by the leak in question. Christiansen also acknowledged that he did not verify that the grout work on the tile had been finished. Thus, Complainant established the items specified in the May 17, 2017 Directive 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.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure to complete all corrective work specified in the Directive.

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. License No: 275722 for a period of one (1) day.

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, November 7, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors