ALJDEC decisions subject to certification as final

2017A-3155-CHC-ROC · Registrar of Contractors · 2018-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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. 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 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.

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 12. 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 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. Done this day, November 5, 2018.

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.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing was continued to October 16, 2018. [2] The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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