ALJDEC decisions subject to certification as final

2016A-4749-ROC · Registrar of Contractors · 2017-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Johnny Lee Bennett,

COMPLAINANT,

v.

JGL Consulting, LLC,

License No: 274797

RESPONDENT.

No. 2016A-4749-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 6, 2017

APPEARANCES: Complainant Johnny Lee Bennett appeared on his own behalf. James Leonard, Owner and Qualifying Party, appeared on behalf of Respondent JGL Consulting, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

JGL Consulting, LLC (Respondent) is the holder of License No. 274797 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 3, 2016, Johnny Lee Bennett (Complainant) entered into a contract with Respondent for the installation of tiling throughout his home for the total cost of $7200.00.

On or about November 28, 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 Russell Reed. On January 5, 2017, after a jobsite inspection, Investigator Reed 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 January 23, 2017.

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

Excessive lippage throughout flooring in all areas.

Inconsistent grout lines throughout flooring in all areas.

Missing or excessive grout in several areas throughout flooring.

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 January 13, 2017, Respondent sent a letter to Complainant suggesting an approach to resolving some of the issues addressed in the written directive. Respondent offered to resolve the lippage issue “by removing the problem tiles and installing new tiles,” to install additional grout in all areas “as to complete the entire job,” and any excessive areas will be rectified as well. Respondent acknowledged that “[t]he inconsistent grout lines cannot be corrected due to the fact that improper product was purchased by [Complainant]” and offered a $900.00 discount on the balance remaining on the contract to allow Complainant to contract with another contractor to correct the issues. Respondent also noted that “[b]ecause of the confrontational attitude projected along with bearing a firearm the last time anyone was at [Complainant’s] home, the safety and welfare of everyone is what matters” and added that “it will be required that [Complainant] leaves the home until work is complete.”

On January 17, 2017, Complainant emailed a response to Respondent in which Complainant stated that “we reject your conditions for work to proceed.” Complainant then addressed his other concerns with Respondent performing the corrective work including trust, schedule, and competence. Complainant concluded with “[Respondent’s] suggested remedy to self-perform the removal and replacement of 1359 SF in less than 5 days is not acceptable by the homeowners. We suggest [Respondent] pursue other remedies as recommended and provided by the ROC, via remedy by third party contractor selected by complainant (Homeowner) or remedy via financial settlement with Homeowner concurrence, as time is of the essence.”

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); and A.R.S. § 32-1154(A)(22).

Investigator Reed testified that there were a “massive amount of workmanship issues” with respect to the flooring including excessive lippage and inconsistent grout lines. Investigator Reed concluded that every area that had tile installed had those issues. Investigator Reed also indicated that he understood Respondent was not being allowed back on the property to perform any corrective work.

Complainant testified that he just wanted a quality floor installation. Complainant acknowledged that as the project progressed, things became more adversarial between the parties. Complainant asserted that the issues presented by the floor could not be resolved with a “simple fix.” Complainant maintained that the job initially took 14 days to complete, and therefore, could not possibly be remediated in the 4 days Respondent was proposing. Complainant admitted that he did not allow Respondent back on the property during the jobsite inspection or to complete any corrective work.

James Leonard, Respondent’s Owner and Qualifying Party, testified that Respondent was willing and able to return to the property to perform the corrective work outlined in its letter, but that Complainant would not afford Respondent that opportunity. Mr. Leonard stated that, while he would prefer Complainant not be present during the repair, if Complainant insisted, Respondent would have made other arrangements to ensure a safe environment for its employees, i.e. a third party present.

Administrative notice is taken of Respondent’s prior License record on April 26, 2017. Such prior License record reflects that Respondent’s License No. 274797 was first issued on November 15, 2011, is current, and was inactive from November 18, 2011, through November 18, 2015. Such prior License record also reflects that there were two prior complaints against Respondent’s license that were resolved, settled, or withdrawn.

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 Respondent attempted to compete at least some of the corrective work following the Directive being issued, but that Complainant would not allow Respondent to enter the property. Rather, Complainant demanded that Respondent arrange for a third party contractor to complete the work or to make a financial settlement regarding the complaint. Because Complainant did not allow access for Respondent to comply with the written directive, he did not establish that Respondent violated A.R.S. § 32-1154(A)(22).

While there were workmanship issues as identified in the written directive, contractors are not expected to perform flawless work without an opportunity to correct it. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written directive. This Tribunal concludes that the preponderance of the evidence of record was insufficient and failed to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Johnny Lee Bennett’s complaint in Case No. 2016-4749 against Respondent JGL Consulting, LLC’s License No: 274797 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, April 26, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors