ALJDEC decisions subject to certification as final

2016A-3633-ROC · Registrar of Contractors · 2017-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna J. Huss,

COMPLAINANT,

v.

Smith Remodeling And Contracting Services LLC dba,

Smith Remodeling,

License No: 264673

RESPONDENT.

No. 2016A-3633-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 3, 2017

APPEARANCES: Complainant Donna J. Huss appeared on her own behalf. Martin Smith, Owner and Qualifying Party, appeared on behalf of Respondent Smith Remodeling and Contracting Services LLC doing business as Smith Remodeling.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Smith Remodeling and Contracting Services LLC doing business as Smith Remodeling (Respondent) is the holder of License No. 264673 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 12, 2016, Donna J. Huss (Complainant) signed a contract with Respondent for, among other things, the buildup of the top of the base cabinet, the installation of the plywood countertop base, and the installation of a new sink and faucet. The contract did not include Respondent’s license number, an estimated date of completion, or a statement that the property owner has the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A).

On or about September 19, 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 Beau Cruz. After a jobsite inspection, Investigator Cruz 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 November 4, 2016.

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

Complaint Item 3: The faucet will not turn on all the way because sink was set back to far. Worker did not check before install.

Ensure that the kitchen fully engages to the cold position and, operates as was intended by the manufacturer.

Complaint Item 5: Screws coming thru plywood base so if you sit at bar you can cut yourself on them.

Ensure that no screws are protruding under outer side of overhang and repair splintering wood caused by screws protruding thru the wood.

Addendum

Complaint Item 9: Countertop sagging at overhang on outer side side [sic] and on southeast edge of countertop.

Ensure that countertop is properly supported to prevent sagging.

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 corrected the screws coming through the plywood base and the countertop sagging at the overhang. After the deadline in the directive expired, Investigator Cruz was notified that Respondent had agreed to perform the corrective work so no compliance inspection was done. On the day before the hearing, Investigator Cruz performed a prehearing inspection. At that time, Investigator Cruz noted that the faucet still did not work properly and that the edge of the sink was bent and there was an excess of caulk on the left side of the sink.

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); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B); and A.R.S. § 32-1154(A)(22).

Complainant testified that the countertop base appeared fine when it was installed, but after she installed the tile countertop, the edge started to sag. Complainant indicated that when the sink was removed and replaced, the edge was damaged and there was no way to repair the bent edge.

Martin Smith, Respondent’s Owner and Qualifying Party, testified that he had not been notified of any issues before receiving the complaint from the Registrar. Mr. Smith questioned why Complainant would install the tile countertop if she knew the base was not structurally sound. Mr. Smith also asserted he was not going to purchase a new $500.00 sink when the issue could have been avoided in the first place.

Administrative notice is taken of Respondent’s prior License record on February 23, 2017. Such prior License record reflects that Respondent’s License No. 264673 was first issued on June 30, 2010, and is current. Such prior License record also reflects that there was one open complaint and no prior complaints 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 the faucet did not operate properly and that the sink had been bent by Respondent’s actions. 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 did not compete the corrective work following the Directive being issued. Therefore, Complainant failed to establish 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).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(B). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

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. 264673 for a period of one 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.

It is further recommended Respondent’s License No. 264673 shall be suspended based on its violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B) until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(B).

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, February 23, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors