ALJDEC decisions subject to certification as final

2016A-5127-CHC-ROC · Registrar of Contractors · 2017-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Manizha Naimi,

COMPLAINANT,

v.

Tanna Construction, Inc.,

License No. CR61.275630-D,

RESPONDENT.

No. 2016A-5127-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 18, 2017, at 8:00 a.m.

APPEARANCES: Manizha Naimi (“Complainant”) appeared on her own behalf; Tanna Construction, Inc. (“Respondent”) appeared through Antonio Lara, its qualifying party/officer.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about November 15, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61.275630-D for dual carpentry, remodeling and repair to Respondent.

On or about December 20, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when it remodeled her kitchen, including that the tiles were uneven, the kitchen cabinets did not match the existing cabinets, and the plumbing was not done properly.

The Registrar assigned the complaint to its Investigator, Matt Gunstra (“Investigator Gunstra”), for investigation. Investigator Gunstra scheduled the first jobsite inspection on January 23, 2017.

On January 27, 2017, Investigator Gunstra on behalf of the Registrar issued a Directive that required Respondent to correct certain deficiencies, in relevant part as follows:

Complaint Item 1: Flooring-tiles uneven.

-Floor tile lippage should not exceed 1/32” and tiles should be level

Complaint Item 2: Cabinets too tall, shape, design different than the original cabinets.

-Per contract new cabinets shall match existing. New cabinets installed do not match existing in several areas such as toe kick height, face frame height, door and drawer size.

NOTE: ADDITIONAL TIME HAS BEEN GIVEN TO COMPLY WITH THIS DIRECTIVE BASED ON RESPONDENT’S REQUEST TO ACCOMMODATE DELIVERY TIME OF MATERIALS. RESPONDENT SHALL PROVIDE DOCUMENTATION TO THE INVESTIGATOR THAT MATERIALS HAVE BEEN ORDERED WITHIN 7 DAYS OF THE DATE OF THIS LETTER.

The deadline in the Directive for Respondent to complete the required corrective action was on or before 5:00 p.m. on February 24, 2017.

On March 2, 2017, Investigator Gunstra performed a compliance inspection. After he determined that Respondent had not made any attempt to correct the uneven floor tiles and had failed to perform corrective action to cause the cabinets that it had installed to match the existing cabinets sufficiently, Investigator Gunstra sent the complaint to the Registrar’s Legal Department.

On March 9, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer, denying any statutory violation because Complainant allegedly had accepted both the uneven tiles and the mismatched kitchen cabinets.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on May 18, 2017. Complainant testified on her own behalf and presented the testimony of her sister, Sonia Naimi. Respondent submitted one exhibit and presented the testimony of Antonio Lara, its qualifying party/officer. Investigator Gunstra also testified.

Hearing Evidence

Complainant attached to her complaint a copy of Respondent’s invoice that described certain work, including replacing kitchen cabinets and granite countertop to match existing, installing a sink, replacing a subfloor, and installing tile below the cabinet sink area.

Investigator Gunstra explained that Respondent replaced the cabinets on one side of Complainant’s kitchen and that its contract required it to match the existing cabinets. Inspector Gunstra testified that at the initial jobsite inspection, the height of the old new cabinets were off by 3/8”, which was visibly noticeable. In addition, the difference between the new and old toe-kicks below the cabinets was 1”, which was also noticeable. This difference did not comply with the contract specifications because the old and new cabinets had noticeably different dimensions.

Investigator Gunstra testified that although Respondent performed some work on the cabinets, their relative height difference still were 1⁄2” different, which was still noticeable, and the toe kicks were still 1” different. Investigator Gunstra testified that Respondent did not comply with the January 27, 2017 Directive with respect to the dimensions of the cabinets.

Investigator Gunstra testified that he measured the floor tile lippage at the jobsite inspection and that the lippage exceed 1/32”. The tile installation therefore did not comply with the Registrar’s standards. Investigator Gunstra testified that Respondent had not done anything to correct the tile lippage before the compliance inspection.

Complainant pointed out that Respondent’s subcontractor had installed a green board beneath the granite countertop to make the elevation of the new countertop match the existing countertop. Complainant acknowledged that she had paid Respondent’s subcontractor to install the green board.

Complainant also complained that the under-mounted sink that Respondent had installed leaked around the edges because they were insufficiently sealed. Investigator Gunstra testified that it appeared the sink was leaking, but that he was not sure who had installed it. Mr. Lara acknowledged that Respondent had loaned Complainant a fan to keep the area dry.

Respondent submitted a text from Complainant in which she had responded to Mr. Lara’s text on January 31, 2017, in relevant part as follows:

Mr. Lara: Good morning...I need to take measurements today after lunch what time can I stop by?

Complainant: Good morning measurement for what

Just go ahead put the doors on the right that’s it.

Mr. Lara testified that he understood Complainant’s text to mean that she did not want Respondent to perform any further corrective work on the kitchen and that she accepted Respondent’s work.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website on May 11, 2017. Respondent’s license was current and in good standing. Although the license has twice been suspended for non-renewal, it has never been disciplined.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established that Respondent did not comply with the contract specifications to install the new kitchen cabinets to match the existing cabinets. Complainant therefore established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

Complainant established that Respondent’s installation of the tile in her kitchen does not comply with the Registrar’s standards. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainant established that Respondent did not comply with the Registrar’s January 27, 2017 Directive. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

The text that Respondent submitted was ambiguous. Because Respondent did not establish that Complainant unequivocally accepted its deficient workmanship or departure from contract specifications, it did not establish that its license should not be disciplined as a result of this complaint.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Tanna Construction, Inc.’s License No. CR61.275630-D shall be suspended for five business days.

It is further recommended that Respondent shall be required to pay the sum of $250.00 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 calendar days following the effective date of the final order, Respondent’s license shall be revoked, 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 five days from the date of that certification.

Done this day, May 23, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors