ALJDEC decisions subject to certification as final
2017A-1867-CHC-ROC · Registrar of Contractors · 2017-08-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kelly Thomas Dwyer,
COMPLAINANT,
v.
Nobles Trading & Services, LLC
DBA: Nobles Contracting,
License No: 305787
RESPONDENT.
No. 2017A-1867-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 3, 2017
APPEARANCES: Complainant Kelly Thomas Dwyer appeared on behalf of himself. Omar El-Mousa appeared on behalf of Respondent Nobles Trading & Services LLC, DBA: Nobles Contracting.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On June 12, 2017, the Registrar of Contractors (“Registrar”) issued a notice setting the above-captioned matter for hearing on August 3, 2017, at the Office of Administrative Hearings.
On May 24, 2017, the Registrar issued a Citation against Respondent Nobles Trading & Services LLC, DBA: Nobles Contracting (“Nobles”) alleging that it violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108) and (A)(22).
The notice provides that the issues for hearing are the charges made in the Citation and Complaint.
Omar El-Mousa is the qualifying party for Nobles.
In February of 2017, Complainant Kelly Thomas Dwyer and Nobles entered into a residential construction contract wherein Nobles would make repairs to Mr. Dwyer’s home.
In or about the first quarter of 2017, Nobles performed work under the contract.
On or about April 7, 2017, the Registrar received a Complaint from Mr. Dwyer alleging poor workmanship on the part of Nobles.
On April 25, 2017, Registrar Investigator Jack Grimm conducted a job site inspection.
On April 27, 2017, Investigator Grimm issued a written Directive. The April 27, 2017 Directive provides, in relevant, part as follows:
You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 15, 2017.
You are hereby directed to remedy the following violations by the appropriate means:
Shower walls, question craftsmanship, question grout and lippage.
Correct crooked and out of line tile and uneven tile (lippage). Correct crooked soap niche. Center line of all joints should be straight and even widths.
Tub surround tiles, question craftsmanship, question grout and lippage.
Correct crooked and out of line tile and uneven tile (lippage). Center line of all tile should be straight and even widths.
Would like assurance that the drainage is appropriate.
Correct wavy shower floor tile with correct slope to drain.
May need grout filled in or matching caulking throughout.
Correct miss matched grout, crooked and out of line tile and uneven tile (lippage) on master bath floor. Center line of all joints should be straight and even widths.
Shower door does not seal.
Correct master shower door for leakage.
Nobles performed some corrective work to Mr. Dwyer’s home during the time period for compliance under the Directive.
On May 19, 2017, Investigator Jack Grimm conducted a compliance inspection. Investigator Grimm concluded that Nobles failed to complete all of the items listed in the Directive, except for item 3. Investigator Grimm’s May 23, 2017 compliance inspection notes provide, in relevant part, as follows:
Compliance Findings:
1. Shower walls, question craftsmanship, question grout and lippage.
Correct crooked and out of line tile and uneven tile (lippage). Correct crooked soap niche. Center line of all joints should be straight and even widths.
INCOMPLETE - Crooked and out of line and lippage issues have been corrected, however new issues are now present due to the repairs.
a. Inconsistant grout color
b. New tile on shower head wall not plumb.
2. Tub surround tiles, question craftsmanship, question grout and lippage.
Correct crooked and out of line tile and uneven tile (lippage). Center line of all tile should be straight and even widths.
INCOMPLETE - Crooked out of line and lippage issues have been repaired , however new issues are now present.
a. Surround at handle end of tub is not tight to the wall
b. Soft grout at front wall of tub.
3. Would like assurance that the drainage is appropriate.
Correct wavy shower floor tile with correct slope to drain.
COMPLETE
4. May need grout filled in or matching caulking throughout.
Correct miss matched grout, crooked and out of line tile and uneven tile (lippage) on master bath floor. Center line of all joints should be straight and even widths.
INCOMPLETE - Most of the issues listed above have been corrected. The floor tile in the toilet room was not replaced and now does not match grout color and center line of joints does not match the new work.
5. Shower door does not seal.
Correct master shower door for leakage.
INCOMPLETE
The repairs performed per the directive have now caused a new set of problems.
A. Repairs to the ceiling below bathroom regarding drywall and paint are now failing.
B. Back upper deck where cutting was performed was not cleaned properly.
C. Many painting issues are incomplete or poor coverage.
D. Ends at toe kick not correct.
E. Towel bars not level.
F. Glass shelves not secure or level.
G. Right sink bowl is stained and never used by the homeowner.
H. Drawers in vanity not replaced.
I. Finish on face of one vanity door damaged.
J. Grout line at toe kick of linen cabinet not straight.
K. Bedroom outlet does not have cover.
12. Nobles filed a timely response to the Registrar’s Citation.
13. A hearing was held on August 3, 2017.
14. At hearing, Mr. Dwyer testified that he was unsatisfied with Nobles’s work. Mr. Dwyer contended that Nobles’s work failed to meet minimum workmanship standards.
15. Omar El-Mousa testified that he replaced the shower door completeley. However, Mr. El-Mousa did not dispute that his work failed to meet minimum workmanship standards at the time of the compliance inspection. Mr. El-Mousa testified on May 24, 2017, he contacted Mr. Dwyer to continue making reapirs. However, Mr. Dwyer informed Mr. El-Mousa that he was not permitted in his home. Mr. El-Mousa testified that he “takes the blame” for the substandard work because he should have gone to the jobsite more frequently. Mr. El-Mousa testified that his workers informed him that everything was going well. Mr. El-Mousa did not allege that Mr. Dwyer denied Nobles access to his home during the timeframe for compliance under the Directive.
16. Administrative notice is taken of Respondent’s prior License record on August 23, 2017. Such prior License record reflects that Respondent’s License No. 305787 was first issued on June 3, 2016, and is current. Such prior License record also reflects that there was one open complaint and no prior complaints 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.
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).
It is undisputed that Nobles failed to correct the items listed in the Directive by appropriate means.
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 Nobles 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. 305787 of Respondent Nobles Trading & Services LLC
DBA: Nobles Contracting shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty.
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 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 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 23, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors