ALJDEC decisions subject to certification as final
2017A-3072-CHC-ROC · Registrar of Contractors · 2017-12-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Martin Lloyd Johnson,
COMPLAINANT,
v.
Focus On Excellence Inc ,
License No: 208624
RESPONDENT.
No. 2017A-3072-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 30, 2017
APPEARANCES: Complainant Martin Johnson; Barry Bennett, Vice President, on behalf of Respondent; Matt Gunstra on behalf of Registrar of Contractor
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
An evidentiary hearing having been set in the above-captioned matter, evidence and testimony having been presented, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:
FINDINGS OF FACT
1. Focus On Excellence, Inc. (Respondent), is the holder of License Number 208624 issued by the Registrar of Contractors (Registrar).
2. On or about June 15, 2017, Martin Johnson (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with a remodel project at his residence at 5700 N. 33rd Place, Paradise Valley, Arizona.
3. After an inspection performed by the Registrar on July 6, 2017, the Registrar issued a Directive, dated July 21, 2017, to Respondent for the failure to meet minimum workmanship standards. (Arizona Administrative Code Rule 4-9-108).
4. Specifically, the Registrar cited the following violations relating to deficient work:
Complaint Item 2: Cabinets-poor quality and installation-paint cracking, chipping, visible cracks, nail holes and joints. Premature wear, not level, splinters in drawers, warped door.
Complaint Item 3: Tile installation-leak in master shower floor; fix still leaks and used different color sealant than grout
Complaint Item 5: Paint overspray damaged wood floors, furniture, art, antiques, light fixtures, computer, chimney cap
Complaint Item 6: Paint touch up different sheen now on walls in 3 rooms
Complaint Item 7: Paint peeling on ceiling
Complaint Item 9: Exterior stucco falling off wall in 2 locations
Complaint Item 10: Kitchen Dutch door leaks
Complaint Item 16: Flashing improperly installed
5. The Registrar conducted another inspection of the site on August 23, 2017, to examine what corrected work had been performed by Respondent. Not all such work had been performed, as particularly detailed below.
6. The Registrar then issued a Citation to Respondent on August 24, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(21) (continuing project with knowledge that a pre-treatment wood-destroying pests application was not performed or inconsistently performed);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).
7. 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 November 30, 2017, at 1:00 P.M.
8. A hearing was held on November 30, 2017, at 1:00 P.M. At the hearing, Complainant testified on his own behalf; Barry Bennett, Vice President of Respondent, testified on behalf of Respondent. Matt Gunstra, the Registrar Investigator (Investigator), testified on behalf of the Registrar.
9. The Investigator on behalf of the Registrar 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 inspections. Specifically, as it relates to the workmanship items in the Directive, he testified that Complaint items numbers 6, 7, and 16 were corrected. He further testified that all the items listed under Complaint item number 2 were corrected with the exception of the upper cabinet damage and that all the items listed under Complaint Item number 5 was corrected with the exception of overspray paint on Complainant’s furniture and art. According to the Investigator, Complaint item number 3 (tile installation), number 9 (painting of exterior stucco), and number 10 (kitchen dutch door leaking) were not corrected.
10. As it relates to the alleged violation of Respondent proceeding with the project with knowledge that a pre-treatment wood-destroying pest application was not performed, the Inspector testified that Respondent ultimately hired someone to apply a wood-destroying pest application.
11. Complainant testified that with respect to uncorrected items cited by the Investigator, Complaint item numbers 2, 3, and 6 have since been corrected. He testified that the remaining items in the Directive, Complaint item 5 (relating to paint overspray on furniture and art) and item10 (kitchen dutch door leaking), have to date not been corrected.
12. Barry Bennett on behalf of Respondent did not dispute that there are still two remaining items to be corrected. He testified that Respondent is addressing the remaining workmanship items. With respect to Complaint item number 10 regarding the leaking kitchen dutch door, Mr. Bennett testified that the door is already scheduled to be repaired or rebuilt within the week. With respect to the other remaining item, Complaint item number 10 regarding the paint overspray on the furniture and the art, Mr. Bennett stated he is in contact with Complainant’s insurer and will be dealing with Respondent’s insurer to remedy the item.
CONCLUSIONS OF LAW
1. The Registrar of Contractors has jurisdiction over Complaint No. 2017A-3072-CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A).
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) provides in pertinent part that:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
...
3. Violation of any rule adopted by the registrar.
...
21. Continuing a new single family residential construction project with actual knowledge that a pretreatment wood-destroying pests or organisms application was either:
(a) Not performed at the required location.
(b) Performed in a manner inconsistent with label requirements, state law or rules.
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....
5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional manner.”
6. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) for failure to meet minimum workmanship standards and A.R.S. § 32-1154(A)(22) for failure to complete corrective action.
7. Complainant has established that Respondent has violated A.R.S. § 32-1154(A)(3) by failing to perform all work in a professional manner. Evidence was uncontradicted that the kitchen dutch door installed by Respondent allowed water to leak. It was further uncontradicted that Respondent caused paint overspray on Complainant’s furniture and artwork.
8. Complainant has not established that Respondent has violated A.R.S. § 32-1154(A)(21) by continuing the project with actual knowledge that a pre-treatment wood-destroying pests application was not performed or inconsistently performed. There was no evidence presented as to if and when Respondent acquired actual knowledge of such or continued the project with actual knowledge. In any event, even if Respondent did acquire such knowledge, the Inspector testified that Respondent at some point hired someone to apply a wood-destroying pest application.
9. Complainant has established that Respondent has violated A.R.S. § 32-1154(A)(22) for failure to complete corrective action. There is no dispute that there are still two remaining items in the Directive that Respondent has failed to correct. The evidence presented suggests that the Respondent has been in the process and has made arrangements to correct the two remaining items, which may in fact be corrected by the time of this ruling. However, it is acknowledged that because the paint overspray damage to the furniture and art may be subject to insurance coverage, the timing of a resolution in this regard has not and may not be in the complete control of Respondent. For that reason, the Tribunal is inclined to grant Respondent additional time before imposing disciplinary action.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that 30 days from the effective date of this Order, Focus On Excellence, Inc.’s, License Number 208624 shall be suspended for two days unless the Registrar receives and accepts written verification that Focus On Excellence, Inc., has remedied the remaining items listed in the Registrar’s Directive, dated July 21, 2017, namely, Complaint item number 5 (relating to paint overspray on furniture and art) and item number 10 (repair of kitchen dutch door leaking).
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected said remaining items, the Registrar may close the Complaint in Case No. 2017A-3072-CHC-ROC.
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, December 20, 2017.
/s/ Roger Geddes______
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors