FINACT2017A-3155-CHC-ROC.pdf

2017A-3155-CHC-ROC · Registrar of Contractors · 2018-12-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Jamie Tower, Case No. 2017-3155 COMPLAINANT, Docket No. 2017A-3155-CHC-ROC v. FINAL ADMINISTRATIVE DECISION Torel Building and Remodeling, LLC, AND ORDER License No. 129905, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 9, 2019. FINAL NOTE On page 1 ¶ 4 the Registrar replaces “ARIZ. REV. STAT. SECTIONS 32-1154(A)(3) AND (A)(22).” with “ARIZ. REV. STAT. sections 32-1154(A)(2), (A)(3) and (A)(22).” On page 4, line 19 replace “Ms. Torel’s” with “Ms. Tower’s.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated November 30, 2018.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail November 30, 2018 to: Respondent Torel Building and Remodeling LLC PO Box 4449 Sedona, AZ 86340

James E. Ledbetter, Esq. Mark Hanson, Esq. THE LEDBETTER LAW FIRM, P.L.C 1003 N Main St Cottonwood, AZ 86326

Complainant Jamie Tower 2370 W Sr 89A Ste 11-512 Sedona, AZ 86336 Matthew J. Mansfield, Esq. Matthew J. Mansfield PLLC 111 E. Aspen Avenue, Suite 15 Flagstaff, Arizona 86001

James Csontos, Esq. Jennings Haug Cunningham 2800 N Central Ave Ste 1800 Phoenix, AZ 85004 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Case No. 2017-3155 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 11.5.2018 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jamie Tower, No. 2017A-3155-CHC-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Torel Building and Remodeling, LLC , License No: 129905

RESPONDENT.

HEARING: October 16, 2018 APPEARANCES: No one appeared on behalf of Complainant Jamie Tower. Mark Hanson, Esq. and James Ledbetter, Esq. appeared on behalf of Respondent Torel Building and Remodeling, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________

FINDINGS OF FACT 1. On September 21, 2017, the Registrar of Contractors, (“Registrar”), issued a NOTICE OF HEARING setting the above-captioned matter for hearing on November 8, 2017, by the Office of Administrative Hearings in Phoenix, Arizona. 1 2. Respondent Torel Building and Remodeling, LLC (“Torel”), holds license 129905 issued by the Registrar. Torel’s qualifying party is Chris Arthur Tortorello. 3. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION AND COMPLAINT. 4. Through the Citation, the Registrar alleges that Torel 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 Torel’s license.2 5. In 2015, Complainant Jamie Tower (hereinafter “Complainant” or “Ms. Tower”), entered into a new home construction contract with Torel.

The hearing was continued to October 16, 2018. The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing. RECEIVED 11.5.2018 ROC LEGAL 6. Under the contract, traditional drywall would be installed in Ms. Tower’s home. Ms. Tower subsequently requested that MgO Board be installed in her home instead of traditional drywall. 7. In February of 2016, Torel began work under the contract. 8. Torel’s subcontractor, Total Building Systems, installed MgO board in Ms. Tower’s home. 9. Prior to the installation of the MgO board, Total Building Systems informed Ms. Tower that MgO Board had a propensity to crack. Ms. Tower agreed to sign a waiver acknowledging that MgO Board had a propensity to crack. Although Total Building Systems sent the waiver to Ms. Tower for her signature by electronic mail, Ms. Tower did not provide Total Building Systems not Torel the waiver with her signature. 10. Ms. Tower fired Torel in August of 2016. 11. On or about June 21, 2017, the Registrar received a COMPLAINT from the Ms. Tower alleging that Torel performed poor work in the construction of her home. 12. On July 7, 2017, Registrar Investigator Steve Philpott, (hereinafter “Investigator Philpott”), conducted a job-site inspection in response to the COMPLAINT. 13. On July 18, 2017, Investigator Philpott issued a DIRECTIVE to Torel. 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 are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 4: C0#1: Dry Wall MGO board poorly installed; seams showing; buckling & overcharged for Mud didn't need

Investigator’s Observation: This complaint item is substantiated. The drywall system used on this home has been textured and appears complete. It appears the wall board joints have not been properly prepared and finished, as numerous cracks are present throughout the home. Respondent shall correct by appropriate means.

14. Through the DIRECTIVE, the Registrar ordered Torel to remedy the alleged violations by appropriate means no later than August 4, 2017. 15. On August 1, 2017, Investigator Philpott conducted a second job-site RECEIVED 11.5.2018 ROC LEGAL inspection. 16. On August 10, 2017, Investigator Philpott issued an AMENDED DIRECTIVE to Torel. The August 10, 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32- 1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 August 31, 2017.

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

Complaint Item 4: C0#1: Dry Wall MGO board poorly installed; seams showing; buckling & overcharged for Mud didn't need

Complaint Item 12: Co #2: Root: Was supposed to be metal. Is Leaking in several places. Didn't get appropriate credit on CO#2

Investigator’s Observation: The roof does appear to be leaking. The Respondent shall determine the cause and correct the condition, including corollary damage, by appropriate means. RECEIVED 11.5.2018 ROC LEGAL

17. Ms. Tower denied access to Torel during the time period for compliance

under the DIRECTIVE.

18. A hearing was held on October 16, 2018. Respondent presented the

testimony of Chris Tortorello and Jason Steward. Investigator Philpott testified

regarding his involvement with the COMPLAINT and CITATION issued. Respondent

submitted exhibits 1 through 40.

19. Investigator Philpott testified that the only item that was not completed on

the DIRECTIVE was Complaint Item 4. Investigator Philpott testified that he had no

evidence that Complainant provided access to Torel under the AMENDED DIRECTIVE.

20. Mr. Tortorello testified that he has had 22 years of experience building

homes. Mr. Tortorello testified that during the time period for compliance under the

DIRECTIVE, Torel offered several time come to Ms. Tower’s home to make the repairs,

but Ms. Tower denied access to Torel.

21. Mr. Tortorello testified that he saw the MgO board ripped out of the home

and placed in Ms. Torel’s front yard before the DIRECTIVE was issued. 22. Jason Steward testified that he worked for Total Building Systems. Mr. Steward is a licensed contractor who installed the drywall in Ms. Torel’s home. Mr. Steward testified that Total Building Systems installed the MgO Board in accordance with the manufacturer’s installation guidelines and that Total Building Systems sent a waiver to Ms. Tower regarding the MgO board’s propensity to crack before it was installed. 23. Complainant did not appear at the hearing. Complainant failed to present any evidence in support of the COMPLAINT. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 2. The burden of proof at an administrative hearing falls to the party

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.5.2018 ROC LEGAL

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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).

4. The preponderance of the evidence does not show that Torel violated

ARIZ. REV. STAT. section 32-1154(A)(22) by failing to comply with the DIRECTIVE

because Ms. Tower did not allow Torel access to correct the work.

5. The preponderance of the evidence established that Complainant denied

Respondent reasonable access to his residence to comply with the terms of the written

DIRECTIVE issued in this matter. This Tribunal concludes that the preponderance of the

evidence of record is insufficient and fails to support a conclusion that Respondent

violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108,

and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this matter be dismissed. 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 is forty days after the date of that certification.

RECEIVED 11.5.2018 ROC LEGAL

Done this day, October 30, 2018. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors