ALJDEC decisions subject to certification as final

2017A-121-CHC-ROC · Registrar of Contractors · 2017-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lourdes E D'Sylva,

COMPLAINANT,

v.

C I Custom Builders, Inc.,

License No:

223278, 223277

RESPONDENT.

No. 2017A-121-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 12, 2017

APPEARANCES: Lourdes D’Sylva, Complainant; Cornel Ionutescu,

Respondent and Qualifying Party.

WITNESSES: Arnold Sepulvda, Jr., Complainant Witness; Randy Carson,

ROC Inspector.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson.

_____________________________________________________________________

A Hearing was convened to determine whether Respondent C I Custom Builders, Inc., violated state law as has been alleged by Complainant Lourdes D’Sylva and as cited by the Arizona Registrar of Contractors (hereinafter also, “the ROC”). Evidence and testimony were presented.

Respondent C I Custom Builders, Inc., holds a Class B-General Residential Contractor license and a B-2 General Small Commercial Contractor license issued by the Registrar of Contractors. Complainant alleges that Respondent performed construction and installation on a project wherein Complainant operated as her own General Contractor. Complainant asserts the work was performed incompletely, in an unworkmanlike manner and that the Respondent abandoned the project without legal or other excuse.

Based upon an examination of the entire record, the following Findings of Fact are made, Conclusions of Law rendered, and DECISION AND RECOMMENDED ORDER issued:

FINDINGS OF FACT

1. Respondent C I Custom Builders, Inc., was issued Lic. Nos. 223278, 223277 by the ROC to Respondent. These licenses were in an active status at the time that the parties’ asserted contract was created and the work was performed that led to the present Complaint.

2. Cornel Ionutescu is the Qualifying Party identified on the C I Custom Builders, Inc. (hereinafter also, “the Contractor” or “Custom Builders”) license.

3. Complainant Lourdes D’Sylva is the owner of residential real estate located at 15761 E Centipede Drive, Fountain Hills, Maricopa County, Arizona.

4. The Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on May 12, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

5. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and COMPLAINT.

6. Through the CITATION, ROC alleges that Custom Builders may have violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (A)(22). The CITATION shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke’s license.

7. On April 15, 2016, Complainant entered into an agreement with Respondent Custom Builders in which the Respondent was to provide services at a home owned by the Complainant. The “agreement” is a mere bid typed onto an INVOICE form and fails in significant respects to comply with the requirements of A.R.S. § 32-1158(B).

8. The services to be provided by the April 15, 2016 bid presented to the Complainant included.

a. Fire Sprinklers

b. Insulation in the Attic

c. Exterior Stucco & Paint

d. Exterior Lights

e. Front Patio

f. Walkway to front Patio

g. Driveway

h. Drain on one side of the house (east?)

i. Drain in front (patio area)

j. Drain in front of the Garage

k. Wall on side of the Garage with Gate to rear of the house

l. Retaining Wall on Side of the Garage towards the street

m. Flooring in 1 Bedroom & 1 Bathroom.

9. On, January 17, 2017, Lourdes D’Sylva. filed a complaint with ROC alleging workmanship and other deficiencies along with abandonment on Custom Builder’s part.

10. In response to Lourdes D’Sylva’s COMPLAINT, ROC Investigator Randy Carson conducted a job-site inspection [after notice to the Respondent and Complainant] on January 27, 2017. Although provided notice, the Respondent failed to appear at the job-site inspection. Thereafter, on February 7, 2017, ROC Inspector Carson caused an ROC DIRECTIVE to be issued to Custom Builders.

11. The ROC DIRECTIVE ordered Custom Builders to repair and complete certain items on the project before a deadline of 5:00 PM on February 24, 2017, as follows:

a. “Fire Sprinklers” Fire Sprinklers system is not completed. Finish caps are not installed throughout the residence.

b. “Insulation in the Attic” Insulation is missing in attic

c. “Exterior Stucco & Paint” The exterior stucco finish is not uniform with the smooth finish listed on the invoice document dated 4/15/16. Colored Synthetic stucco finish not applied. NOTE: Stucco debris is left on the roof and there is also excess stucco and other debris left on the ground around the exterior of the house.

d. “Front Patio” Concrete flat work is incomplete, also there is excess debris material on the ground around and the grading is incomplete. Drywall ceiling is incomplete.

e. “Walkway to front patio” No concrete flat work has been completed

f. “Driveway” No concrete flat work has been completed

g. Drain on one side of the house (east?)” The respondent had not installed any roof scupper on the new front bedrooms roof area. Respondent has water running off the roof around the corner of the East parapet roof wall and then down the existing roof. Note: there are signs of a water leak in the new bedroom on the ceiling

h. “Drain in front (patio area)” New roof drain pipe not per plans installed at the front porch; drain pipe is exposed.

i. “Wall on side of the garage with gate to rear of the house. West Side gate not installed and the existing and new property wall not repaired and not completed.

j. “Retaining wall on side of the garage towards the street” Complainant is referring to the parapet wall on the west side of the new garage walk deck. The garage parapet wall to the left of the stairs is out of plumb approx. 1-3/8” at the end wall up by the street also the new exterior stairs to new garage deck not completed; Drywall, door and colored Synthetic stucco finish not applied.

k. “New roof leaks in the garage and front bedroom” There are areas in the new garage and front bedroom ceilings were there are signs of water leaks. There are also ceiling drywall cracks in the garage

l. “Drywall ceiling cracks in the kitchen area”

m. “Door to new front bedroom is not installed”

n. “Window leaks” The Kitchen windows installed on both side of the cook top have signs of water leaking into the interior of the kitchen area

o. “Front window is not plumb” The window opening to the East of the front door is out of square and plumb

p. “Back sliding glass door is installed incorrectly” The Sliding glass door leading to the backyard is out of plumb and square

q. “Kitchen window is installed incorrectly” The kitchen window over the kitchen sink is not square or plumb.

r. “No exterior lights” It appears no exterior lights have been rough (sic) in by the respondent’s electrician.

12. Respondent ignored ROC’s February 7, 2017 DIRECTIVE because, he contends, he was fired and that a restraining order was in force against him prohibiting contact with the Complainant.

13. Evidence taken at the hearing from Cornel Ionutescu, the Qualifying Party, indicates that on or about August 26, 2016, Mr. Ionutescu made a demand of his customer, Lourdes D’Sylva, that she pay him a progressive payment installment. Ms. D’Sylva refused payment because the work for which payment had been demanded had not yet been completed. Heated words were exchanged between Mr. Ionutescu and Ms. D’Sylva in the presence of witness Arnold Sepulvda, Jr. [a flooring contractor on this project].

14. An [unidentified] electrical sub-contractor for the Respondent, at the time of the August 26, 2016 argument between the Respondent and the Complainant, was coming down out of the attic area. As the electrical sub-contractor proceeded down, words were exchanged between the electrical contractor and the Complainant to the effect that he intended to stay right where he was until the Respondent was paid and that he was not going to leave.

15. The Complainant directed the electrical subcontractor to leave. When he steadfastly refused, the Complainant called the police because she was concerned for her safety regarding the trespass. Complainant testified that an incident report was filled out by her with the police, but both the Respondent and his electrical sub-contractor had left the scene before police arrived.

16. Following the August 26, 2016 incident, the Respondent never returned to the job site and had no further direct communication with the Complainant.

17. At hearing, the Respondent admitted he had never been served with a Court Order of any kind restraining him from contact with the Complainant or prohibiting contact with her property. Respondent also admitted at hearing that he was neither ordered off Complainant’s property nor directed not to return to complete the job by the Complainant.

18. Complainant denies seeking any court intervention for protection against the Respondent and denies making any stop order directed towards the Respondent.

19. A preponderance of the credible evidence demonstrates that under the facts presented, the Respondent had no reasonable basis upon which to believe it was fired or that a stop order had been imposed by the Complainant.

20. On March 8, 2017, the ROC issued its CITATION against the Respondent charging a violation of A.R.S. § 32-1154(A)(1); a violation of Rule 4-9-108, titled “Minimum Construction Standards” in the Arizona Administrative Code, and thereby a violation of A.R.S. § 32-1154(A)(3); a violation of A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter; 1158(B); a violation of A.R.S. § 32-1158(B); and a violation of A.R.S. § 32-1154(A)(22).

21. On May 11, 2017, ROC Inspector Carson conducted a prehearing inspection. Mr. Carson provided credible testimony that, in most respects, the Respondent has failed and refused to comply with the terms of ROC DIRECTIVE in this case. Specifically, referring to paragraph 10, sub-paragraphs a through r hereinabove, the Respondent did not comply with any of the items ordered. With respect to most of the work left undone or needing repairs, the ROC Inspector testified, and was confirmed by testimony from the Complainant, that other contractors had to be engaged to finish the work left undone or needing repairs on this job.

22. Regarding installation of the fire sprinkler system, the Complainant engaged and is bound for payment to another contractor who has now performed this work originally bid by the Respondent.

23. Credible testimony from the Complainant and exhibits of record evidences that the Respondent was paid a total sum of $83,000.00 dollars for the work it was to have done under this agreement. Of the $83,000.00 paid, the sum of $5,800.00 was paid to the Respondent in June, 2016 to install the fire sprinkler system. The Respondent did not provide installation of the fire sprinkler system.

24. Inspector Carson provided credible testimony that still remaining undone from the DIRECTIVE are the following:

a. West Side gate has not been installed.

b. “Door to new front bedroom is not installed”

c. “Window leaks” The Kitchen windows installed on both side of the cook top have signs of water leaking into the interior of the kitchen area

d. “Front window is not plumb” The window opening to the East of the front door is out of square and plumb

e. “Back sliding glass door is installed incorrectly” The Sliding glass door leading to the backyard is out of plumb and out of square

f. “Kitchen window is installed incorrectly” The kitchen window over the kitchen sink is not square nor plumb.

CONCLUSIONS OF LAW

1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119.

2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2).

3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(3).

4. A preponderance of the evidence is:

The 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.

BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. ARIZ. REV. STAT. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

Violation of any rule adopted by the registrar.

*****

Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.

9. ARIZ. ADMIN. CODE section R4 9 108(A) provides that “A contractor shall perform all work in a professional manner.” A violation of Rule 4-9-108, if committed by a licensed contractor is a violation of A.R.S. § 32-1154(A)(3)

10. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22).

11. The preponderance of the evidence shows that the Respondent violated ARIZ. REV. STAT. section 32-1154(A)(3) by failing to perform its work in a professional manner in that :

i. It did not install the West Side gate.

ii. It did not install the door to new front bedroom

iii. The Kitchen windows installed on both side of the cook top have signs of water leaking into the interior of the kitchen area

iv. The window opening to the East of the front door is out of square and plumb

v. The Sliding glass door leading to the backyard is out of plumb and out of square

vi. The kitchen window over the kitchen sink is not square nor plumb.

12. The preponderance of the evidence shows that the Respondent violated ARIZ. REV. STAT. section 32-1154(A)(22) by failing to comply with the DIRECTIVE.

13. The preponderance of the evidence demonstrates that the Respondent violated A.R.S. § 32-1154(A)(1) in that it abandoned the contract or refused to perform after submitting a bid on work to the Complainant. The Abandonment occurred without legal excuse for the abandonment or refusal to perform.

14. Considering the nature of the workmanship violations and the abandonment, the Respondent’s license should be suspended unless prior to the effective date of the final Order in this matter, it complies with the terms of this recommended Order.

15. Inasmuch as Respondent did not comply with the DIRECTIVE and considering its stated reason for that failure is unsupported by credible evidence, the imposition of a $500.00 civil penalty is appropriate.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter’s license numbers 223278 and 223277 be suspended until the Registrar of Contractors receives proof that C I Custom Builders, Inc. has completed the following:

1. Refund to the Complainant the sum of $5,800.00, with certified funds, which represents payment made to the Respondent for installation of a Fire Sprinkler system that the Respondent did not install;

2. Install the West Side gate; install the door to new front bedroom; repair the Kitchen windows installed on both side of the cook top that have signs of water leaking into the interior of the kitchen area; repair the window opening to the East of the front door that is out of square and out of plumb; repair the Sliding glass door leading to the backyard that is out of plumb and out of square; repair the kitchen window over the kitchen sink that is not square nor plumb.

3. If before the effective date of the Final Order, the Registrar of Contractors receives proof that C I Custom Builders, Inc. has complied with this recommended Order, then no suspension will take place;

IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, C I Custom Builders, Inc. must pay to the Registrar of Contractors in certified funds a civil penalty of $500.00.

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 is forty days after the date of that certification.

Done this day, June 1, 2017

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Done this day, June 1, 2017

Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors