ALJDEC decisions subject to certification as final

2017A-1880-CHC-ROC · Registrar of Contractors · 2017-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffery Walraven,

COMPLAINANT,

v.

Double D's Construction LLC,

License No: 300470,

RESPONDENT.

No. 2017A-1880-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 6, 2017 with the record originally held open to permit Respondent to perform corrective work. The record was subsequently closed at Complainant’s request after Respondent allegedly failed to complete corrective work and attempted to provide Complainant a new license number because its license had been revoked.

APPEARANCES: Jeffrey Walraven (Complainant) appeared on his own behalf. Double D’s Construction LLC (Respondent) was represented by Nino Derasmi, its authorized representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 508 West Sundance Way, Chandler, Arizona 85225.

Respondent holds Arizona Contractor’s License No: 300470. This license was revoked effective July 12, 2017.

On April 27, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work on his home remodeling project.

The Registrar assigned investigator Russell Reed to investigate the complaint. Reed testified that he arranged to perform an inspection on May 11, 2017, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Gunstra indicated that at the time of an inspection, he substantiated 15 of Complainant’s allegations.

On May 12, 2017, Reed sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 May 31, 2017.

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

Obtain proper building permit and pass all inspections.

Repair damage to front door threshold.

Complete cabinets as per plans and specifications to include; proper side cabinet above refrigerator, fill nail holes, install missing doors and false drawers.

Cabinet hardware has large voids around it where putty was placed and looks poor.

Install flex tubing under cook top.

Light switch for exterior lights is on the opposite side of arcadia window/door, should be on door side.

Drywall texture/finish is inconsistent and poor throughout ceiling of home.

Closet in living room is not completed properly and needs repair to drywall and trim pieces.

Back splash in kitchen has not been installed.

Condensation line for A/C is not installed.

Ceiling fans are not installed.

Hallway bathroom outlet is too close to the backsplash.

Kitchen Cabinet drawers and doors do not function correctly, (open and close)

Some tiles of near the kitchen and back door have chips in them.

Bottom of door frames and jams need to be finished properly in the transition to the 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.

***

If your license 300470 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

Reed subsequently extended the Directive by one week. Respondent did perform some corrective work, as Reed confirmed when he saw workers on the job during his compliance inspection, but Respondent did not complete all work specified on the Directive.

During the compliance inspection, Reed found that Respondent had completed items numbers 1, 6, 8, 10 and 14, but that 10 of the 15 items still needed repair. Reed clarified that while a permit was obtained, the house had not yet passed all inspections. Reed commented that although Respondent’s workers felt the ceiling was complete and they just needed to paint it, there was no way that the ceiling met workmanship standards. Reed therefore forwarded the matter to the Registrar’s legal department.

On June 9, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced ““[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Hearing was convened at the Office of Administrative Hearings (OAH) on September 6, 2017. No one raised the issue of the revoked status of Respondent’s license.

At hearing, Reed testified consistently with the facts detailed above as did Complainant. Complainant said his main concern continued to be the ceiling.

Respondent’s representative only stated that he was committed to fixing the outstanding issues and wanted another chance to do so. Because Respondent’s representative never disclosed that Respondent’s license was revoked, the Administrative Law Judge advised the parties that she was willing to hold the record in this matter open for short time to permit additional efforts at corrective work if that is how the parties wished to proceed. Complainant elected to give Respondent one final chance to correct its work so long as Reed would conduct a follow-up inspection to ascertain whether the corrective work met workmanship standards. Reed agreed to perform such an inspection.

On September 21, 2017, Complainant notified OAH that Respondent had failed to complete the work and was trying to use a different license number since license number 300470 had been revoked on July 12, 2017.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-115.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D)

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).

Undisputed credible testimony established Respondent performed substandard work on Complainant’s home remodel project, including but not limited to, applying inconsistent drywall texture and finish on the ceiling of the home, causing damage to a threshold of a door, leaving cabinets unfinished and with nail holes, failure to install several items in the kitchen, failure to finish several areas of trim and drywall and installing chipped tile. Thus, Complainant established that all the items specified in the Directive not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is warranted for Respondent’s failure to complete the remaining work identified in the Directive while its license remained active and for attempting to perform corrective work with an expired license in violation of the Directive.

Throughout this proceeding, Respondent has misrepresented the status of its license and attempted to perform corrective work in violation of the express language of the Directive. This conduct raises concerns that Respondent cannot be regulated.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No.: 300470.

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, September 28, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors