ALJDEC decisions subject to certification as final
2017A-2931-CHC-ROC · Registrar of Contractors · 2017-11-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Erin Joan Garrett,
COMPLAINANT,
v.
N X S Construction LLC,
License No: 237833
RESPONDENT.
No. 2017A-2931-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 26, 2017
APPEARANCES: Complainant Erin Joan Garrett appeared on behalf of herself. William Gillaspy appeared on behalf of Respondent N X S Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about February 13, 2017, Complainant Erin Joan Garrett, (hereinafter “Ms. Garrett”), entered into residential home remodeling contract with Respondent N X S Construction LLC, (hereinafter “N X S”).
2. On or about March 6, 2017, N X S began work on Ms. Garrett’s home.
3. On or about June 6, 2017, the Registrar of Contractors (“Registrar”) received a Complaint from Ms. Garrett alleging poor workmanship on the part of N X S.
4. On June 28, 2017, Investigator Timothy Pennington, (hereinafter “Investigator Pennington”), conducted a jobsite inspection.
5. On June 28, 2017, Investigator Pennington issued a Directive to
N X S. The June 28, 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 7/31/2017.
You are hereby directed to remedy the following violations by the appropriate means:
Glass shower at the outside corner is not flush and look bowed in the middle on pony wall.
Glass door is not even with glass on front facing wall when closed.
Shower door was installed first, but when the respondent installed the towel bar it interferes with the safe operation of the door.
The tile on bath tub does not meet the 1/32 workmanship standard for high lippage on adjacent tiles.
Carpet in master Bedroom stained.
No permit pulled prior to job site work starting. Respondent must meet the permit requirement and comply with the local building official request to obtain final approval for the permit for work related to work contracted.
6. N X S attempted to correct some of the items listed in the Directive by
the due date.
7. On August 9, 2017, Investigator Pennington conducted a job site
Compliance inspection. Investigator Pennington concluded that N X S had not completed all of the items listed in the Directive.
8. On August 10, 2017, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22).
9. N X S filed a timely answer to the Citation and Complaint.
10. On October 25, 2017, Investigator Pennington completed a prehearing inspection. Investigator Pennington concluded that N X S completed all of the items listed in the Directive, with the exception of items 4 and 5.
11. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
12. On September 8, 2017, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m., on October 26, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
13. On October 26, 2017, an evidentiary hearing was held.
14. At hearing, Ms. Garrett testified that N X S performed unsatisfactory work on her home. Ms. Garrett testified that gave N X S many opportunities to cure the defects in her home.
15. William Gillaspy testified on behalf of N X S. Mr. Gillaspy testified that he is the operations manager for N X S. Mr. Gillasy testified that the stained carpentry was not corrected because Ms. Garrett wanted the carpentry repaired after all of the items were corrected.
16. Ms. Garrett testified that she did not want the carpet cleaned until all of the work was completed because the workers had to walk on the carpet to make the repairs listed in the Directive. Ms. Garrett reasoned that the carpet should be the last item to be repaired.
17. Administrative notice is taken of the Registrar’s public website on November 14, 2017. According to the information available on the website on November 14, 2017, there are two open complains against N X S’s license and the Registrar has never before taken disciplinary action against N X S’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The preponderance of the evidence shows that the issues found by Investigator Pennington constituted workmanship issues with the remodeling of Complainant’s home. Therefore, evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108.
The preponderance of the evidence shows that Respondent failed to comply failed to comply with the Directive without valid justification, which is a violation
of Ariz. Rev. Stat. § 32-1154(A)(22). N X S did not establish that it was justified in failing to repair the carpet because Ms. Garrett wanted it to corrected last. Ms. Garrett reasonably requested that her carpet be cleaned last because N X S’s employees would need to walk on the carpet to repair the items listed in the Directive. Furthermore, N X S provided no evidence to justify why it failed to correct item 4.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend N X S Construction LLC, License No: 237833 for a period of one (1) day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
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 final 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. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, November 14, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors