ALJDEC decisions subject to certification as final

2016A-5145-ROC · Registrar of Contractors · 2017-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Peter Michael and LeAnne Sue Prenovost,

COMPLAINANTS,

v.

Luke's Painting Service LLC dba,

Desert Rock Building & Remodeling,

License No: 272425

RESPONDENT.

No. 2016A-5145-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 4, 2017 with the record held open until September 27, 2017.

APPEARANCES: Complainants Peter Michael and LeAnne Sue Prenovost appeared on behalf of themselves. No one appeared on behalf of Luke’s Painting Service LLC dba, Desert Rock Building & Remodeling.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 22, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on April 12, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Luke’s Painting Service LLC dba, Desert Rock Building & Remodeling, (hereinafter “Luke’s Painting”), holds license 272425 issued by the Registrar.

Luther Johnson is the qualifying party for Luke’s Painting.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Luke’s Painting may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(2), (A)(16), and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Luke’s Painting’s license.

On or about October 28, 2016, Complainants Peter Michael and LeAnne Sue Prenovost, (hereinafter “Complainants” or “Prenovosts”), entered into a home remodeling contract with Luke’s Painting.

On or about November 9, 2016, Luke’s Painting began work on Complainants’ home.

On or about December 7, 2016, Luke’s Painting stopped work under the contract.

Luke’s Painting was not licensed to perform plumbing.

On or about December 12, 2016, the Registrar received a Complaint from the Prenovosts alleging that Luke’s Painting performed poor work in the construction of their home.

On or about January 11, 2017, Registrar Investigator Mike Grimm, (hereinafter “Investigator Grimm”), conducted a job-site inspection in response to Complaint. Investigator Grimm’s January 11, 2017 Jobsite Inspection notes provide, in relevant part, as follows:

Complaint Item Number 1: Kitchen work never started 1. Custom island to be designed and installed. 2. Relocate electrical outlets to island. 3. Relocate light fixture to be centered over island. 4. Paint entire kitchen.

Investigator’s Observtion: Work in the kitchen was never started. Photos 3,4,5,6. Homeowner also states the work was to include new doors on the laundry closet and a new kitchen faucet. Luke Johnson and parties agreed that it would be better if the money regarding the kitchen work was refunded and not started.

Governing Rule: Workmanship Rule: 4-9-108(A) incomplete work per contract

Complaint Item 2: Incomplete work master bathroom. 1. Shower plumbing/drain (our bathroom is still unusable as of today). 2. Tile finishing work i.e. tile out of align and end pieces not finished. Tile around outlet not finished, top edge of tile not sealed and finished, soap holder not completely sealed with grout. 3. Various areas of drywall incomplete. 4. Baseboards (removed and never reinstalled). 5. Painting never started. 6. Glass partition or barn door never installed. 7. One electrical outlet not completely installed. 8. One towel bar holder affixed to the tile incompletely installed. 9. Shower head is extremely loose not connected to anything and not sealed for resisting water. 10. Shower faucet handle is extremely loose not connected to anything and not sealed to resisting water.

Investigator’s Observtion: Plumbing has been repaired by Rooter Hero Plumbing. Work was permitted and inspected. Work that was removed was never permitted. Shower is still incomplete. Photos 9-23. Tile work is incomplete and misaligned and tile edges are incomplete. No bullnose was used on any edges. Floor does not have a rubber membrane and unable to determine if the walls have been sealed correctly. Drywall repairs, baseboards and painting is incomplete. Agreed upon barn door at master bathroom entrance has not been installed. Electric is incomplete. It does not appear any electric was moved in the bathroom. Towel bar is loose. Loose shower head and backing was discussed and the rep for Rooter Hero stated they planned on completing the bracing of the water lines and shower head that they reworked.

Governing Rule: Workmanship Rule: 4-9-108(A) poor work and incomplete work.

Complaint Item 3: Poor work 1. Plumbing was incorrectly installed which allowed cement to enter the plumbing. 2. According to Rooter Hero Plumbing hot/cold lines were affixed with the incorrect couplings. When Rooter Hero removed the cement and exposed the plumbing they found the connections already leaking water. 3. Entire shower tile cut/affixed in odd places. 4. Shower soap holder-tile cut/affixed in way that is not standard tile setting. 5. No regard for containing dust and or cleaning on the days they worked.

Investigator’s Observation: Plumbing has been corrected by Rooter Hero Plumbing and stated that the cost for that work is $10,000.00. The rep for Rooter Hero stated their contract included backing the new water line and making drywall repairs. The homeowner stated he expected the respondent to cover those costs. The work that was replaced was unpermitted and uninspected work. New work was inspected by the appropriate jurisdiction the parties claimed. Poor tile work was addressed in #2 above. The home appeared clean at the time of the inspection and may have been cleaned by the homeowner as work has not been performed lately. Respondent could not provide name of licensed plumber that had worked on this project and will receive a warning letter for out of scope plumbing work.

Governing Rule: Workmanship Rule: 4-9-108(A)(B) Poor or incomplete work. Work had to be corrected that was not installed or inspected per building codes.

On January 18, 2017, Investigator Grimm issued a Directive to Luke’s Painting. The Directive provides, in relevant 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). You are hereby directed to remedy the following violations by the appropriate means:

Kitchen work never started.

Complete new kitchen island and other kitchen improvements per contract.

NOTE: Electrical work may require a permit.

Incomplete work master bathroom.

Complete and repair master bathroom and shower per contract, building codes and industry standards.

13. Through the Directive, the Registrar ordered Luke’s Painting to remedy the alleged violations by appropriate means no later than February 3, 2017.

14. Luke’s Painting did not remedy the alleged violations by February 3, 2017.

15. After the Registrar issued a Citation against Luke’s Painting on February 7, 2017, Luke’s Painting filed a timely response.

16. At hearing, Peter Michael and LeAnne Sue Prenovost testified that Luke’s Painting failed to remodel her kitchen and complete the work required under the contract. Mrs. Prenovost testified that Luke’s work failed to meet minimum workmanship standards.

17. On July 26, 2017, Luke Johnson submitted a handwritten statement to the Registrar regarding the Complaint. The July 26, 2017 letter provides, in relevant part, as follows:

FROM: Luther E. Johnson

Registrar of Contractors, Complaint

Formerly known as Luke’s Painting Service, LLC

DBA Desert Rock Building & Remodeling

License No(s) KB-2.272425-D

Dated: July 26, 2017

Dear Legal Department

I am writing this in my own penmanship so that there is no mistake on who this is from. In the case of Peter Michael and Le Anne Sue Prenovost, case # 2016-5145, I did not have enough time to complete the work as I hoped I would. Therefore, all the work was stopped upon the stipulation of the surrender of my license.

As I have attached the order of closing with this letter, the attachment is stamped on July 24th, 2017 and states that I entered into a stipulation on July 6th to surrender my license by July 10th, I which I have done so. I have surrendered my license so that Peter Michael and Le Anne Prenovost can seek compensation from the recovery fund pursuant to A.A.C. R2-19-106-D; I have already surrendered my license by July 10th, 5:00 p.m., and am writing this written response and ask you to rule in their favor so that they can be must compensated from the Recovery Fund. I will cooperate fully with all legal and all investigative authorities in the R.O.C. to help stop Paul Le Chance from hurting people.

Sincerely, Luther E. Johnson

18. Luke’s Painting did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed twenty-five minutes to allow Luke’s Painting additional travel time, Luke’s Painting did not appear, through an authorized member, employee, or attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed. Consequently, Luke’s Painting did not present any evidence to defend its license.

19. Administrative notice is taken of Respondent’s prior License record September 21, 2017. Such prior License record reflects that Respondent’s License No. 272425 was first issued on August 3, 2011, and is revoked. Such prior License record also reflects that there is one open complaint and three complaints that resulted in discipline against Respondent’s license.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat. section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.

The revoked status of Respondent’s license does not

deprive Complainants of their right to prosecute the Complaint or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

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).

Luke’s Painting did not dispute that it failed to complete the construction work. Mr. Johnson wrote in his July 26, 2017 statement, “I have surrendered my license so that Peter Michael and Le Anne Prenovost can seek compensation from the recovery fund pursuant to A.A.C. R2-19-106-D”.

The preponderance of the evidences shows that Respondent performed work outside the scope of its license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16).

The preponderance of the evidence shows that Respondent failed to complete the construction work required under the contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2).

The preponderance of the evidence shows that Respondent’s corrective work failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108).

The preponderance of the evidence shows that Respondent failed to comply with the April 27, 2017 Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Because Luke’s Painting has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), its license could be suspended or revoked.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 272425 of Respondent Luke’s Painting Service LLC dba, Desert Rock Building & Remodeling shall be revoked.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, August 24, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors