ALJDEC decisions subject to certification as final

2017A-3002-CHC-ROC · Registrar of Contractors · 2017-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amber Marie Martin,

COMPLAINANT,

Sun Valley Remodeling, Inc.,

License No: 128499

RESPONDENT.

No. 2017A-3002-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 27, 2017

APPEARANCES: Complainant Amber Marie Martin appeared on behalf of herself. Doug Mack appeared on behalf of Respondent Sun Valley Remodeling, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On September 29, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on November 27, 2017, by the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Sun Valley Remodeling, Inc., (hereinafter “Sun Valley”), holds license 128499 issued by the Registrar. Sun Valley’s qualifying party is Doug Mack.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Sun Valley may have violated A.A.C. Rule 4-9-108 and 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, the Registrar may suspend or revoke Sun Valley’s license.

5. On or about March 3, 2017, Complainant Amber Marie Martin and Sun Valley entered into a residential construction contract. Under the contract, Sun Valley would remodel Ms. Martin’s home located at 14230 W. Gelding Drive, Surprise, AZ 85379.

6. On or about March 20, 2017, Sun Valley began work on Ms. Martin’s home. On or about May 19, 2017, Sun Valley stopped worked on Ms. Martin’s home.

7. On or about June 9, 2017, Ms. Martin filed a Complaint with the Registrar of Contractors against Sun Valley alleging poor workmanship.

8. On or about July 11, 2017, Investigator Jack Grimm (“Investigator Grimm”) conducted a job-site inspection.

9. On July 18, 2017, Investigator Grimm issued a Directive. The

July 18, 2017 Directive provides, in relevant 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). You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 8-19-2017. You are hereby directed to remedy the following violations by the appropriate means:

Cabinets have been damaged by actions or inactions of this contractor. Cabinets baseboard damaged or missing.

Repair upstairs vanity cabinets damaged by removal of the tile floors.

Carpentry - baseboard is missing, holes have not been properly filed, doors damaged or not working properly.

Correct locations in upstairs baseboards were nail holes where not filled or filled correctly and repaint. Correct upstairs SW corner bedroom door that is binding when closed. Add base shoe at vanity bases. Remove painters tape at base locations.

Electric system is potentually dangerous just as the city inspector found in the HVAC in attic and bathroom GFCI's.

Reinstall bathroom GFCI’s and verify all outlets and fan works in the master bedroom.

Gypsum wallboard cracks and holes not filled, textured over.

Correct all drywall cracks holes and joint issues. Contract states “Clean and fill all holes and imperfections.”

Prior stained baseboard finish has been removed.

Correct finish issue on base at Kitchen Island.

Interior paint inadequately covers surface. No Prep, paint was applied to dirty dusty walls and is peeling.

Correct areas of poor paint coverage on door casings. Correct cut in paint to ceiling issue over stairs. Correct sheen issues at ceilings upstairs. Perform final paint touch up.

Plumbing fixtures (upstairs toilets) was not installed after corrective floor work was done due to poor workmanship.

Verify Master bathroom toilet is operational.

Broken roof tiles caused by carelessness of contractors.

Repair broken roof tiles below front upper window.

Stair step lippage a potential safty hazard and improper installation also a concern.

Correct stair nosing trim for long term reliability.

Exterior painting was not done in accord to the contract. E.G. improper prepping, missing paint, inadequate caulking.

Complete caulk and paint around windows. Contract states “Neatly caulk all intersections of siding with windows and doors.” Correct cracks in stucco and repaint. Contracts states “Repair all stucco and patch cracks, holes and all damage.” Correct areas of overspray at window pop outs.

NOTE: Complete all cleanup of project.

10. On or about August 29, 2017, Investigator Grimm conducted a

compliance jobsite inspection. Investigator Grimm’s jobsite inspection notes provide, in relevant part as follows:

Compliance Findings: 1. Cabinets have been damaged by actions or inactions of this contractor. Cabinets baseboard damaged or missing.

Repair upstairs vanity cabinets damaged by removal of the tile floors.

INCOMPLETE - Cabinets still appear to have areas were damage occurred due to tile removal.

2. Carpentry - baseboard is missing, holes have not been properly filed, doors damaged or not working properly.

INCOMPLETE - Observed several locations of unfilled nail holes in base. Door is repaired. One base shoe was installed it was cracked.

3. Electric system is potentually dangerous just as the city inspector found in the HVAC in attic and bathroom GFCI's.

Reinstall bathroom GFCI’s and verify all outlets and fan works in the master bedroom.

COMPLETE - Bathroom outlets are GFCI protected. Fan is working. Only item of note is a cracked outlet cover in master bed room.

4. Gypsum wallboard cracks and holes not filled, textured over.

Correct all drywall cracks holes and joint issues. Contract states “Clean and fill all holes and imperfections.”

INCOMPLETE - Minor crack in upstairs hall ceiling.

5. Prior stained baseboard finish has been removed.

Correct finish issue on base at Kitchen Island.

COMPLETE

6. Interior paint inadequately covers surface. No Prep, paint was applied to dirty dusty walls and is peeling.

Correct areas of poor paint coverage on door casings. Correct cut in paint to ceiling issue over stairs. Correct sheen issues at ceilings upstairs. Perform final paint touch up.

COMPLETE - Painting is complete and acceptable.

7. Plumbing fixtures (upstairs toilets) was not installed after corrective floor work was done due to poor workmanship.

Verify Master bathroom toilet is operational.

COMPLETE

8. Broken roof tiles caused by carelessness of contractors.

Repair broken roof tiles below front upper window.

COMPLETE

9. Stair step lippage a potential safety hazard and improper installation also a concern.

Correct stair nosing trim for long term reliability.

COMPLETE

10. Exterior painting was not done in accord to the contract. E.G. improper prepping, missing paint, inadequate caulking.

INCOMPLETE - Incomplete caulking and paint around window. Several stucco cracks not repaired.

NOTE: Complete all cleanup of project.

INCOMPLETE - Poor cleanup of project. Interior was dirty at time of inspection. Homeowner states in email that some cleanup of about 80% was performed after the compliance inspection.

11. Sun Valley filed a timely appeal to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. At hearing, Ms. Martin testified that Sun Valley performed poor work when it remodeled her home.

14. Investigator Grimm testified regarding his initial inspection, the issuance of the Directive and his compliance job inspection. Investigator Grimm testified that he issued a Directive to Sun Valley for the workmanship issues related to the cabinetry because he believed that Sun Valley damaged Ms. Martin’s cabinets while performing remodeling work in Ms. Martin’s home.

15. Mr. Mack testified that after Investigator Grimm’s initial job site inspection, he repaired the remaining items in Mr. Grimm’s job site inspection notes. Mr. Mack also testified that some of the items listed in the Directive were in poor condition before Sun Valley began work on the home.

16. Administrative notice is taken of Respondent’s license record the Registrar’s public website. According to the information available on the website on December 18, 2017, there are two open complaints against Sun Valley. Such license record also shows that there is one closed complaint against Respondent that was resolved or settled by the contractor or withdrawn by the complainant after issuance of a formal citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 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 Grimm constituted workmanship issues with the remodeling of Ms. Martin’s home. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent attempted to comply with the directive, but that all of the work was not completed properly. The preponderance of the evidence shows that Respondent failed to comply with the Directive

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Sun Valley Incorporated, License No: 128499 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 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 licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 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 five days from the date of that certification.

Done this day, December 18, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors