ALJDEC decisions subject to certification as final

2017A-248-CHC-ROC · Registrar of Contractors · 2017-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tracy L Sparby,

COMPLAINANT,

v.

Rorex Design and Development LLC,

License No: 207110

RESPONDENT.

No. 2017A-248-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 22, 2017, 8:30 A.M.

APPEARANCES: Steven L. Bossé, Attorney for Complainant, Complainant Tracy L. Sparby; Brian Laird, Attorney for Respondent, Paul Rorex, member and qualifying person, on behalf of Respondent; John Smith on behalf of Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. Rorex Design and Development LLC (Respondent), is the holder of

License Number 207110 issued by the Registrar of Contractors (Registrar).

2. On or about January 13, 2017, Tracy L. Sparby (Complainant), filed a Complaint against Respondent with the Registrar. Complainant alleged that Complainant and Respondent entered into a written contract signed by the parties on September 27, 2016, wherein Respondent was tasked to remodel a bathroom at Complainant’s residence for the contract price of $29,070.90. According to the contract, the contract amount was to be paid $15,000.00 down, $10,000.00 in 15 days, and $4,070.90 upon completion. Complainant testified that to date he has paid Respondent $45,000.00 in total on the contract by check and credit card for the work. Respondent testified $35,000.00 of that amount has not been paid because Complainant has disputed the charges with his credit card company.

3. After an inspection of the job site on February 9, 2017, by John Smith, the Registrar Investigator (Investigator), the Registrar issued a Directive dated February 23, 2017, requiring Respondent to remedy various alleged violations as follows:

1. Permit required for remodel project. Permit needs to be obtained by property owner, or property owner’s authorized agent. If the local jurisdiction finds corrective issues relating to the respondents work, the respondent will be required to correct those issues by appropriate means. Approved inspection results to be sent to the ROC Investigator.

2. “...the bathroom is not completed.”

3. “Light sockets and controls not mounted flush.”

4. “Tile in bathroom not evenly spaced.” (The grout lines between the tiles by the entrance to the shower were found to not be within standards.)

5. “Tile in bathroom not evenly spaced.” (Some of the large uneven gaps around the perimeter of the room will not be covered by the base tile. Additionally there are visible saw cuts in the some of the tiles.)

6. “Heat lamps not centered.” (Heat laps should not be installed in showers.)

7. “Doors on closet cut unevenly.”

8. “Towel rack controls are scratched, paint on them.”

9. “New bath wall not square / large gap between cabinets and wall.”

10. “Exhaust fan barely pulls air.”

11. “Lights not level.” (Right side light fixture is not level.)

12. “Doors were not re-installed properly”

13. “Sprinkler system moved. Tested?”

4. According to the parties, Respondent corrected items 6, 8, 12, and 13 of the Directive and are not in dispute. However, after a second inspection on April 11, 2017, by the Investigator, the Registrar issued a Citation to Respondent on April 19, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or building codes);

b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum construction standards);

c. A.R.S. § 32-1154(A)(8) (failure to complete construction for stated price in contract); and

d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for August 22, 2017, at 8:30 A.M. At the hearing, Complainant testified on his own behalf; Paul Rorex, member and qualifying party, and Ted Jarkowski testified on behalf of Respondent. The Investigator testified on behalf of the Registrar.

6. The Investigator testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, as to corrective action undertaken, he testified that a building permit was obtained on March 21, 2017, but that no final inspection had been performed in that regard. He further confirmed that items 6, 8, 12, and 13 in the Directive had been corrected, but the remaining items had not as of his last inspection on April 11, 2017.

7. Complainant presented as evidence a copy of the signed contract, dated August 26, 2016, which included a contract price of $29,070.90. (Complainant’s Ex. 8, 000077). Complainant presented another unsigned contract dated December 13, 2016, for $50,099.40 (Complainant’s Ex. 9, 000082) (including a notation “New Costs for Master Bath” on cover page), and another unsigned contract dated December 13, 2016, for $53,233.05, (Complainant’s Ex. 9, 000086) (including notation “as of 12-21-16” on cover page). He also presented two other unsigned contracts dated August 26, 2016, for $3,990.37 (Complainant’s Ex. 8, 000075), and $4,980.80 (Complainant’s Ex. 8, 000079).

8. Respondent maintained that the unsigned contracts reflected a broader scope of work than the original signed contract. According to Mr. Rorex, the unsigned contracts resulted from Complainant requesting additional work and from additional work that was necessitated by the discovery during the course of the work of unforeseen conditions, such as rot behind the existing shower walls. He further indicated that Complainant refused to sign any change orders, the modified contracts, or any additional contracts, but that the vast majority of the additional work was performed without such a signed modified contract or change orders. Complainant testified he refused to sign modified contracts or any change orders.

9. Directive Item No. 1: There was no dispute that a building permit was ultimately obtained on March 21, 2017. However, The Directive required Respondent to remedy corrective issues, if any, upon final inspection by the local jurisdiction. As a result of the project not being completed, there were no periodic or final inspections of the work. Consequently, the local jurisdiction could not sign off on the project or raise corrective issues, if any, to be remedied.

10. Directive Item No. 2: The Inspector testified as to numerous unfinished items to complete the bathroom. (Complainant’s Ex. 7, 000071). The following items, according to the Investigator, are still required to complete the bathroom:

a. install new shower valve w/ trim

b. install new shower drain

c. install new windows at shower

d. install new tile and grout at shower walls

e. install new tile and grout at shower floor

f. repair drywall, tape and texture ceiling

g. paint bathroom ceiling and walls

h. install new granite counter top w/ backsplash

i. install new under mount sinks

j. install new faucet

k. install new tile at bath floor

l. install new shower glass

m. clean up and remove debris

(Complainant’s Ex. 7, 000071). With the exception of two of these items, the installation of the windows (item c above) and the installation of the granite countertop (item h above), Respondent did not dispute that the other items listed under Directive Item No. 2 were incomplete or were not the responsibility of Respondent under the contract. As to items c and h, Mr. Rorex testified that the task of installing the new windows at the shower was deleted from the contract by Complainant. Mr. Rorex further testified that the installation of the granite countertops was deleted from the contract by Complainant and that Complainant took over the responsibility of installing the countertops. Complainant presented no evidence to the contrary.

With respect to the remaining items (items a-b, d-g, and i-m above), Respondent concedes that the items are unfinished. However, Mr. Rorex testified that some of the items were not completed because Complainant did not grant him full access to the site to complete the items. He further testified that other items were not completed because another component of the job needed to be completed by the Complainant before Respondent could proceed to complete the items

Specifically, as it relates to completing the tile and grout in the shower, Mr. Rorex testified that the tile and grout could not be completed because Complainant had requested that a metal trim be installed that was not part of the original contract. Mr. Rorex stated he was willing to install the trim but that Complainant refused to sign a corresponding change order or agree to pay for the installation. He further testified that other items relating to plumbing could not be completed until the granite countertop was installed by Complainant.

Complainant testified that he granted Respondent full access to perform corrective action. Respondent countered that it was given limited blocks of time and had access without electrical power at one point in time. Ted Jarkowski, an employee of Respondent who was on the job site, testified that Complainant was uncooperative in allowing the corrective action to take place.

11. Directive Item No. 3: Complainant submitted evidence that the electric outlets, controls, and cover plates were not flush with the wall. (Complainant’s Ex. 3, 000023, 00031-32). Mr. Rorex on behalf of Respondent testified that some of the outlets or controls were already not flush before work started and that Respondent’s work did not involve all of the outlets, controls, or cover plates in the bathroom.

12. Directive Item No. 4: The Investigator testified as to grout inconsistencies at the entrance to the shower. However, neither party directed the Tribunal to any photographic evidence to show that the grout lines near the shower entrance were either too narrow or too wide.

13. Directive Item No. 5: Complainant presented photographic evidence of uneven and inconsistent grout lines around the perimeters of the bathroom. (Complainant’s Ex. 3, 000031-33, 000042-44, 000053, 000061). Complainant further submitted photographic evidence of cut tiles or tiles with saw lines. (Complainant’s Ex. 3, 000047, 000049). Respondent submitted photographic evidence that the yet-to-be installed tile base (with thin set applied) would cover any grout consistencies there may be around the perimeter. (Respondent’s Ex. 7, 000563-570). Respondent presented no evidence that corrective action had been taken with respect to the cut or sawed tiles.

14. Directive Item No. 7: Complainant presented photographic evidence showing slightly uneven closet doors at the bottom. (Complainant’s Ex. 3, 000058). Mr. Rorex on behalf of Respondent testified that the closet doors had since been cut straight. He submitted photographs showing the measurements of the doors upon removal and the re-installation of what appears to be level doors. (Respondent’s Exhibit 7, 000553-00555).

15. Directive Item No. 9: Evidence was submitted that showed a space between the wall and the newly-installed cabinetry by Respondent (Respondent’s Exhibit 4, 000126). Mr. Rorex on behalf of Respondent testified that the gap was caused by the uneven pre-existing floor that was up to two inches out of level at points and that leveling the floor was not requested or part of the contract. He further testified that the cabinetry was installed in such a manner so as to accommodate the yet-to-be installed granite countertops and that adjusting the level of the cabinetry to close the gap would create an unlevel surface for the countertops.

16. Directive Item No. 10: The Investigator testified that the installed exhaust fan barely pulled air, although he did not use a gauge for any air flow measurements. Respondent testified that he installed a new exhaust fan and moved the fan location less than one foot at the request of Complainant. He explained that such a short distance did not necessitate the installation of new ducting to accomplish the fan’s relocation. Mr. Rorex further testified that he had Daniel Roberts of A/C Services test the new exhaust fan with a gauge which resulted in an air flow reading of 61 CFMs.

17. Directive Item No. 11: Complainant testified that the installed vanity lights were not level. Mr. Rorex on behalf of Respondent testified that his electrician verified with a carpenter’s leveling tool that the lights were level. He further submitted a photograph to show the light was level. (Respondent’s Exhibit 4, 000126). In any event the light has been removed.

CONCLUSIONS OF LAW

1. 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. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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3. Violation of any rule adopted by the registrar.

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8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

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22. 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”

6. A.R.S. § 32-1154(A)(2). Complainant has not established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2), for the alleged departure from or disregard of plans and specifications or any building codes in any material respect that is prejudicial to another. The Investigator testified that a building permit was obtained on March 21, 2017; therefore, any violation there may have been involving work without a permit has been rectified.

It is noted the Directive also required correction of issues, if any, raised in the inspections by the local jurisdiction. However, because the bathroom was never actually completed, it appears the local jurisdiction did not perform a final inspection. The Tribunal does not find that the lack of a final inspection by the local jurisdiction is attributable to Respondent.

7. A.R.S. § 32-1154(A)(3). Complainant has established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, for the alleged failure to perform all work in a professional manner. The evidence supports a finding that Respondent failed to fully or adequately perform some of the items listed in the Directive.

a. Directive Item No. 2. Complainant has established that the bathroom has not been completed. The following items, according to the Investigator, are required to complete the bathroom:

i. install new shower valve w/ trim

ii. install new shower drain

iii. install new tile and grout at shower walls

iv. install new tile and grout at shower floor

v. repair drywall, tape and texture ceiling

vi. paint bathroom ceiling and walls

vii. install new under mount sinks

viii. install new faucet

ix. install new tile at bath floor

x. install new shower glass

xi. clean up and remove debris

Respondent does not dispute that these items are not complete but attributes Respondent’s failure to complete these items to actions and inactions by Complainant. However, despite what may have been legitimate reasons at the time to not to complete these items, additional efforts should have been made by Respondent to finish the project to make the bathroom functional.

b. Directive Item No. 3. Complainant has established by photographic evidence that that electric outlets, controls, and cover plates were not flush with the wall. Respondent did not submit any photographs or any other evidence that the matter had been corrected.

c. Directive Item No. 4: Complainant has established through the testimony of the Investigator that there were grout inconsistencies at the entrance to the shower. Respondent did not submit evidence that corrective action had been taken or that there were no such inconsistencies.

d. Directive Item No. 5: Complainant has established through photographic evidence that there visible saw cuts on some of the tiles. Respondent presented no evidence that corrective action had been taken with respect to the cut or sawed tiles. Complainant has not established that there are uneven and inconsistent grout lines around the perimeters of the bathroom that will be visible once the tile base has been installed.

e. Directive Item No. 7: Complainant has not established that there uneven closet doors at the bottom. Respondent presented photographic evidence that the doors were removed and corrected.

f. Directive Item No. 9: Complainant has established through photographic evidence that that the newly-installed cabinetry is not flush with the wall. Respondent does not dispute that there is a gap but maintains the gap was caused by the uneven pre-existing floor and that the level of the cabinetry cannot be adjusted because of the granite countertops to be installed. While Complainant presented no evidence to counter Respondent’s contention that the cabinets could not or should not be adjusted, it would appear that some corrective action would be available to cover or fill the existing gap, whether it be additional scribe molding or some type of filler. Evidence submitted reflects that this may have been attempted at some point in time. (Complainant’s Ex. 3, 000049).

g. Directive Item No. 10: Complainant has not established that Respondent is responsible for any deficiencies there may be with respect to the exhaust fan. Complainant did not present evidence that the air flow was deficient or the fan was otherwise undersized for the size of the bathroom. Even if undersized, there was no evidence presented that the alleged lack of air flow was caused by the new fan or the relocation of the fan rather than some other cause unrelated to the work of Respondent.

h. Directive Item No. 11: Complainant has not established that Respondent is responsible for any lack of levelness of the vanity lights. It is difficult to discern from the photograph presented whether the vanity light is or is not level. Further, the Investigator did not testify that he had used a carpenter’s leveling tool to determine whether the light was in fact level.

8. A.R.S. § 32-1154(A)(8). Complainant has not established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(8), for the alleged failure on the part of Respondent to complete a construction project for the price stated in the contract or any modification thereof.

It is not disputed that the only signed contract between the parties was for the contract amount of $29,070.90. However, Respondent established that Complainant requested additional work that was not part of the original contract. Although Complainant did not sign any of the proposed modified contracts from Respondent that included this additional work, Complainant presented no evidence that he did not request additional work that was not part of the original contract or that Respondent did not undertake to perform this additional work. Further, the fact that Complainant paid Respondent as much as $45,000.00, well above the original contract price of $29,070.90, reflects that Complainant acknowledged that there were modifications to the original contract, whether memorialized in writing or not.

Due to the informal nature of the relationship of the parties and the verbal additions or deletions of tasks from the original contract, it is difficult to determine the “price stated in the contract, or in any modification to the contract.” The evidence supports a finding that there was a modified contract between the parties. However, Complainant has not established the price of the modified contract, Therefore, Complainant has not shown that there has been a material failure of Respondent to complete the project for the price stated in the modified contract.

9. A.R.S. § 32-1154(A)(22). Complainant has failed to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22), for the alleged failure on the part of Respondent to take appropriate corrective action without valid justification within a reasonable period of time. Although some of the corrective items remain incomplete, the evidence supports a finding that Respondent made a good faith effort to remedy the items. Further, Complainant bears some of the responsibility for Respondent’s inability to complete the corrective action. While Complainant provided some access to Respondent to complete the corrective items, such access was limited and the evidence suggests hindered Respondent’s ability to complete the items. Further, some of the corrective items could not be completed by Respondent until Complainant completed other tasks for which Complainant took responsibility to complete. Accordingly, because the actions of Complainant provide a legal justification for Respondent’s failure to comply with the Registrar’s Directive, Complainant has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Rorex Design and Development LLC’s License Number 207110 is suspended for two days.

In the event of certification of this 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 the certification.

Done this day, September 11, 2017.

________/s/ Roger Geddes__________

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors