ORDER

2016A-4373-CHC-ROC · Registrar of Contractors · 2017-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 22, 2017 APPEARANCES: Robert Zuart, Complainant; Gabriela Zuart, Complainant; Ganero Rivera, Respondent; Daniel Marquez, Respondent; Matt Gunstra, Investigator for the Registrar of Contractors; Roxanna Patterson, Interpreter ADMINISTRATIVE LAW JUDGE: Amy Foster _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License No. 278029 to Red Wood Maintenance Services, LLC (Respondent). On or about May 6, 2016, Robert Zuart and Gabriela Zuart (Complainants) received an email estimate from Respondent for the installation of an addition to their home including a new concrete slab and footing, wood framing for the walls and roof, roof shingles, dry wall installation and texture, stucco, plumbing, relocating and installing a window, cabinets, relocating an air conditioning duct, kitchen wall demolition, and relocating a sliding door. These items were estimated to cost $21,500.00. Respondents also gave an estimate of $5400.00 to remove existing floor tile and install travertine tile on the house and addition. Respondents estimated $1700.00 to remove the existing tile, cabinet and toilet in a bathroom; to remove the current bathtub and install a walk-in shower; new tile, cabinet and toilet installation; and perform the necessary plumbing. This is the only written information regarding the work to be performed. Complainants wrote back that they would consider the estimate. They did not sign an official estimate. Work began on or about July 12, 2016. On November 2, 2016, The Registrar received the complaint alleging 63 separate alleged problems with Respondent’s work and possible violations. Of these, included was the failure to install fixtures including the toilet in the interior hallway bathroom, the child’s room was not completed in regards to incomplete painting and cleaning, an incorrectly installed laminate floor, incomplete work in the kitchen and pantry, windows not straight, baseboards not installed, cabinets ordered in the wrong size, a sink drain exposed, cracked travertine tile, French doors were not complete, and a number of other items were unfinished. The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra noted that because there was only a vague estimate as to the work performed, he could not substantiate a number of the complaints as it was not clear if they were part of the original project. 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). You are hereby directed to remedy the following violations by the appropriate means:

1. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes, and manufacturer’s installation instructions. 2. Flooring in new bedroom is not properly installed and is soft in areas. Subflooring to be prepared to properly accept new flooring and flooring to be installed per manufacturer installation instructions and industry standards 3. Wall at kitchen sink is out of plumb by ½” 4. Foundation concrete is missing at rear of home at waste pipe 5. Gable vents are not installed as shown on plans 6. Rear patio pavers are cracking in several areas 7. Paint drips on flooring, light switches etc.

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 to comply with the directive. Inspector Gunstra viewed the worksite on December 7, 2016. The newly completed work did not meet Registrar of Contractors standards. There was thin paint in the closet and pantry. The rear patio had a broken brick. There was missing exterior trim at the old/new transition. The rear patio ceiling was not secured properly at the light plate. Some nails that the rear patio ceiling were not fully seated. The rear patio ceiling was not tightly fitting in all areas and had gaps at the wall. The exterior waste cleanout cover was covered by stucco. There was an improperly installed interior door striker plate at the pantry. The flooring in the new bedroom was not properly installed and was soft in areas. The wall at the kitchen sink was out of plumb by a half an inch. Paint drips on the flooring and light switches were not cleaned and hence were not repaired to standard. The Registrar issued a Citation against Respondent, charging a possible violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(12), A.R.S. § 32-1124(B), A.R.S. § 32-1158(B). Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 7, 2017. Such prior License record reflects that Respondent’s License 278029 is current. Such prior License record also reflects that there was one prior substantiated complaint against Respondent’s license in 2014. 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 did not properly complete the project according to the original contract agreement including improper floor installation, poor paint, missing trim, improper ceiling work on the patio. Therefore, Complainants 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).[1] 4. The evidence established that Respondent did not have a satisfactory contract for his work as it was not specific and lacked almost all of the elements required by the Registrar. Therefore, Complainants established that Respondent violated violation of A.R.S. § 32- 1158(B).[2]

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall 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, March 7, 2017.

/s/ Amy Foster Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” [2] A violation of A.R.S. § 32-1158(B)(“From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.”).

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