ALJDEC decisions subject to certification as final

2017A-3934-CHC-ROC · Registrar of Contractors · 2018-01-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pamela Jean Miller,

COMPLAINANT,

v.

Transformations Renovations LLC ,

License No: 313365

RESPONDENT.

No. 2017A-3934-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 26, 2017, at 8:30 a.m.

APPEARANCES: Pamela Jean Miller (“Ms. Miller” or “Complainant”); Josh Means (“Mr. Means” witness for Complainant); Thomas Lundberg (“Mr. Lundberg” witness for Complainant); Joseph Donnelly (“Mr. Donnelly” or “Respondent” representative for Transformations Renovations LLC); Eric O’Neal (“Mr. O’Neal” witness for Respondent); Jack Grimm (“Investigator Grimm” for the Registrar of Contractors “ROC” or “Registrar”); and Donald Councilor (“Mr. Councilor” observer for Complainant).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar. Upon hearing of relevant testimony and evidence, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

On or about May 31, 2017, the Arizona Registrar of Contractors (“Registrar”) issued to Respondent License No. B-3.313365-R for General Remodeling and Repair Contractor. Its Qualifying Party is Joseph Henry Donnelly.

On or about July 31, 2017, Complainant filed a complaint with the Registrar against Respondent alleging abandonment and other complained of items surrounding workmanship issues stemming from an oral agreement entered into with Respondent. Respondent was hired to perform a demolition of the master bathroom tub and other renovation work required in Complainant’s residence located at 1424 East Desert Broom Way, Phoenix, Arizona 85225-6492.

The Registrar assigned the complaint to Investigator Jack Grimm for investigation. Investigator Grimm performed a jobsite inspection on August 29, 2017. Respondent was not present. Investigator Grimm noted that Respondent was not licensed at the start of the project, and that there was no written contract.

Investigator Grimm substantiated the following items during this jobsite inspection:

Complaint Item 1: Granite scope not completed, kitchen, island and master bathroom. Abandoned granite slabs in front of house.

Investigator’s Observation: Granite slabs are in the driveway, the kitchen and master bathroom do not have granite tops installed (Photos 4, 5, 11).

Governing Rule: Workmanship Rule 4-9-108(A) Incomplete work

Complaint Item 2: Granite scope poor quality, far bath and mid bath. Crooked cuts, can see lip of sink from improper fabrication.

Investigator’s Observation: It appears tops have been cut for these two bathrooms, however the cuts are crooked or are not the correct size to fit over the under top sinks (Photos 6-10).

Governing Rule: Workmanship Rule 4-9-108(A) Poor work

Complaint Item 3: Granite scope poor quality, far bath and mid bath. Crooked cuts, can see lip of sink from improper fabrication.

Investigator’s Observation: It appears tops have been cut for these two bathrooms, however the cuts are crooked or are not the correct size to fit over the under top sinks (Photos 6-10).

Governing Rule: Workmanship Rule 4-9-108(A) Poor work

Complaint Item 4: Painting scope incomplete, roof chimneys, front door both sides, shutters, pantry door and touch up in various locations.

Investigator’s Observation: Painting work outside has some issues. Chimneys not painted, front door not painted, shutters in living room not painted. Paint is failing at the entry location. Paint is all over the window frames. Cabinets that were painted or are poorly done in the master bathroom and linen door is incomplete. Many location in the home on the walls and the base are incomplete or poorly done. Front door not painted. Overspray and paint all over fixtures and items throughout the house. Paint all over all the exterior window frames. Photos - 3, 25 thru 36, 42 thru 49, 52, 56, 63, 64, 65, 69 thru 79.

Governing Rule: Workmanship Rule 4-9-108(A) Poor and incomplete work

Complaint Item 5: Punch list incomplete, holes in cabinets, complete base board caulking, replacement of master closet baseboards.

Investigator’s Observation: Several issues with incomplete work including holes and base board (P-23, 25,26, 59)..

Governing Rule: Workmanship Rule 4-9-108(A) Poor work.

Complaint Item 6: Additional punch list, installation of kick plates, re-hang pantry door after painting.

Investigator’s Observation: Kick plates on base of cabinets missing, pantry door not in place. P5,27,53).

Governing Rule: Workmanship Rule 4-9-108(A) incomplete work.

Complaint Item 7: Completion master bath shower, floor never properly floated/water test which is a code violation, finish the work.

Investigator’s Observation: Master shower is a mess with poor grout lines and general poor fitting of the tile pieces. No trim on any of the edges with raw edges exposed everywhere. Shower floor is wavy messy and poorly installed. Upper edge has a piece of metal trim over the top of it with no apparent way to finish it. P-15 thru 22, 24.

Governing Rule: Workmanship Rule 4-9-108(A) poor work.

Complaint Item 8: Front yard drainage scope not complete, pavers removed, no solution installed, pavers left abandoned.

Investigator’s Observation: The homeowner stated there was an agreement to find a solution to better drain the front entry when it rains. It appears the work was started but no drain is installed and is incomplete. P-68.

Governing Rule: Workmanship Rule 4-9-108(A) incomplete work.

Complaint Item 10: Texture work does not match existing walls in multiple locations, mid bath, ceiling, fireplace area , other walls.

Investigator’s Observation: Drywall texture is poor and does not match existing texture. Many locations need to be retextured and repainted. P- 41,42,50,51,54,55.

Governing Rule: Workmanship Rule 4-9-108(A) poor work.

Complaint Item 11: Incomplete grouting of tile work in various locations and replacement of several improperly set tiles.

Investigator’s Observation: Observed several area of pooly grouted floor tile. P-56 thru 62.

Governing Rule: Workmanship Rule 4-9-108(A) poor work.

Complaint Item 12: Cracked stacked stone tiles that require replacement.

Investigator’s Observation: Stacked stone around the fireplace is pooly done with a cracked location, poor corners and raw edges. 37,38,39,40,41.

Governing Rule: Workmanship Rule 4-9-108(A) poor work.

On September 12, 2017, Investigator Grimm issued a Directive setting forth eleven (11) violations that Respondent was directed to remedy no later than September 29, 2017.

Investigator Grimm conducted a Compliance Jobsite Inspection on October 11, 2017, and noted that Respondent asked the homeowner to provide certain materials which were provided and upon his compliance inspection, noted little to no work was performed.

Because Respondent failed to remedy any of the items listed on the Directive, Investigator Grimm referred the matter to the Registrar’s Legal Department. On October 16, 2017, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/officer Mr. Donnelly filed a timely written answer to the Citation disputing the complainant and citation for reasons of non-compensation by Complainant, project changes from handyman daily labor to fixed dollar amount, alleging it paid for incidentals that were not reimbursed, and items contained in the complaint were not in any of the various scopes, among other assertions made in its reply.

An evidentiary hearing was held on December 26, 2017. Complainant testified. Mr. Donnelly testified on Respondent’s behalf. Investigator Grimm also testified

Hearing Evidence

Investigator Grimm testified consistently with the September 12, 2017 directive. Investigator Grimm testified that Respondent’s representative was not present at the August 29, 2017 jobsite inspection. Investigator Grimm stated contractor was not licensed at the start of this project and received its license on May 31, 2017. Inspector Grimm reaffirmed in his testimony his observations during his jobsite inspection and that he observed several incomplete items.

Investigator Grimm further testified regarding the Directive issued on September 12, 2017, and the items that Respondent was directed to remedy by appropriate means.

A Compliance Inspection was performed on October 11, 2017. Investigator Grimm observations were documented that all items listed on the Directive were incomplete. He then referred the matter to the Legal Department.

Respondent questioned Investigator Grimm regarding a punch list and asked when did he receive one? Investigator Grimm replied that he never received a punch list and is referring to the items listed on Complainant’s complaint.

Thomas Lundberg (“Mr. Lundberg”) General inspector II, Residential Inspections for the City of Phoenix testified that he conducted four (4) site visits:

April 5, 2017, called by the Contractor for questions on new drain and bath that was going to be installed and demolish of one of the fireplaces which was not on the scope of the permit but he did added it to the scope;

Next inspection was called by Contractor to inspect the new drain from the tub to the sewer connection and that failed;

April 14, 2017, contractor called for re-inspection of the drain and it passed; and

On July 26, 2017, Homeowner called for job meeting. Homeowner was upset because there was unfinished work. Mr. Lundberg testified that he advised Homeowner to contact the Registrar of Contractors.

Mr. Lundberg was questioned regarding the building permit and who it was issued to. Mr. Lundberg replied Pamela J. Miller. When asked who the contractor was that he referenced in his testimony, he replied it was Respondent and that the only reason for inspection was for the conversion of the half bath to full bath.

Pamela Jean Miller (“Ms. Miller”) testified that she hired Respondent to do work on the bath and that over the weekend, Respondent spoke with Mr. Means about completing other work projects. She stated they agreed to pay Respondent at a daily rate of $250.00 a day, his worker Eric at $200.00 and unlicensed workers at $100.00 a day.

Ms. Miller testified that she became dissatisfied taking note very little work was complete and poor quality work. She spoke with Respondent about changing the terms to the agreement from payment per day to payment upon completion of each project.

Ms. Miller stated that on June 1, 2017, Respondent began to cut the granite which was delivered on-site. She testified this is not characteristic since typically a contractor picks up the granite or product is delivered to a fabrication center. She alleges Respondent incorrectly cut the granite and the sinks were incorrectly installed. Ms. Miller stated testified it was at that time she and her husband, Mr. Means, realized the granite was not going to work.

Ms. Miller stated she attempted to communicate with Respondent on job progress and that in July 2017, Respondent walked off the project leaving them with an inoperable kitchen. Complainant testified around two (2) months ago from today, they were forced to hire another contractor to get the kitchen in operation, and currently have a contractor working on the items set forth in the Directive since Respondent did not remedy the items.

Ms. Miller testified that she wanted the items repaired and provided Respondent with access to the property to remedy.

Regarding payments to Respondent, Complainant stated that payments were made in cash. Complainant’s bank ledger illustrating amounts withdrawn was admitted under Respondent objection. Complainant further testified she understands she is under Oath and that the payments were made to Respondent.

Complainant moved to admit Exhibits C-2 and C-3. Exhibit C-2 is an email to Respondent regarding dissatisfaction of the work and C-3 is the proposal of moving from the day rate to an upon completion payment schedule. Complainant testified that Respondent agreed to these terms.

Respondent called Mr. Means as a witness and questioned him on various items and whether they were functional. Respondent also asked Mr. Means if he recalls him stating he is not an electrician and that he does not possess these qualifications. Mr. Means replied, yes, he was aware Respondent was a handyman at that time and not a licensed contractor. Electrical was listed on its proposal to include “electrical work for entire home - $1,000.00 – 4 days at $250/day.”

Mr. Means further testified he and Respondent began discussions on additional work one day after Respondent was on site. He testified the electrical was not fully functioning at the time Respondent arrived and that there were wires hanging all over the place from earlier demolition by day laborers he hired. Respondent entered the home on March 4, 2017, and a section of the home was not fully functioning.

Respondent called Eric O’Neal (“Mr. O’Neal) who stated he was paid by Josh in cash, and that Respondent never hired him or paid him because he wasn’t licensed.

Respondent asked Mr. O’Neal regarding the scope of the work to be performed at Complainant’s residence such as painting of the exterior of the home and whether it was communicated that homeowner stated they need HOA approval and advising homeowners the shutters were damaged. Mr. O’Neal testified he showed Mr. Means the damaged shutters and stated that if painted over, the shutters would continue to crack so he waited to hear back from Mr. Means on a solution. Mr. O’Neal stated that he worked about 30 to 40 days on this project, and that Mr. Means directed all the work.

Testimony was received from Complainant that Mr. O’Neal was paid for about 10 to 15 days of work at the $200.00 rate; another worker was paid $100.00 for about 5 days of work; and Respondent was paid $250.00 a day. Complainant asked that Exhibit C-83, an email dated August 26, 2017, reflecting a revision of the work that was to be performed be admitted. She testified the purpose of this email was to lay out Complainant’s expectations on the work that needed to be complete in an attempt to resolve the matter. Exhibit C-83 was admitted.

Respondent testified the Registrar of Contractors issued it’s B3 residential remodel license that permits up to $50,000.00 of work and labor and that plumbing and electrical are not included in this license. He testified he is required to hire subcontractors.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Under A.R.S. 32-1154(A)(3), namely A.A.C. R4-9-108, Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the specific deficiencies listed in the September 12, 2017directive, thereby providing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Under A.R.S. 32-1154(A)(22) while construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. Complainant established that Respondent was provided reasonable opportunity to remedy the items listed on the Directive. Investigator Grimm further testified that during his Compliance Inspection, he observed certain materials provided by the Homeowners at the request of the Respondent to remedy but little to no work was performed. Respondent did not establish that it attempted to contact Complainant to schedule repairs during the time allowed by the directive, and that access was denied. Therefore, Complainant established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. B-3.313365-R shall be suspended for a period of five (5) calendar days.

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 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 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 forty days from the date of that certification.

Done this day, January 15, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors