ALJDEC decisions subject to certification as final

2017A-4161-CHC-ROC · Registrar of Contractors · 2018-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sophia Loren Campbell

COMPLAINANT,

v.

Redemption Fine Home Builders LLC ,

License No. 290216

RESPONDENT.

No. 2017A-4161-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 5, 2018

APPEARANCES: Sophia Loren Campbell, Complainant, Joyce VanCott, Esq.,

attorney for the Complainant, Philip Coppala, Complainant Expert, Angela Mendoza, Respondent and Qualifying Party, Rubin Mendoza, Respondent Member, Jack Grimm, ROC Investigator.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On November 22, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 5, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Redemption Fine Home Builders LLC (“Redemption”), holds a B-RESIDENTIAL-LLC license numbered 290216 and issued by ROC. Angela Mendoza is of record as the Respondent’s qualifying party.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. The complaint was filed August 14, 2017 and the Citation was issued October 26, 2017.

The ROC Citation alleges that Redemption may have violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby having violated A.R.S. § 32-1154(A)(3). The Citation also alleges that the Redemption may have violated A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action within a reasonable period of time after receiving a written directive from the registrar).

The Citation provided notice that if the Administrative Law Judge finds that either subsection has been violated, ROC may suspend or revoke Redemption’s license.

Complainant Sophia Loren Campbell owns a house located at 8501 W Mitchell Drive in Phoenix, AZ 85012-3063. On April 28, 2016 the Complainant’s residence sustained significant fire damage.

State Farm Insurance Company (State Farm) insured the Complainant’s home. State Farm was the adjuster for the fire damage claim demolition and restoration.

The Complainant and Redemption entered a written contract for demolition reconstruction work on June 7, 2016 [Exhibit C-1]. The scope of the reconstruction work was determined by State Farm’s claims adjuster.

On August 14, 2017 Sophia Loren Campbell filed a complaint with ROC alleging over two dozen workmanship deficiencies on Redemption’s part.

In response to the complaint, ROC Investigator Jack Grimm conducted a job-site inspection on September 11, 2017. At the job-site inspection the Complainant and Respondents Ruben Mendosa Angelia Mendosa were present.

On September 18, 2017, Mr. Grimm issued his corrective work order to the Respondents directing:

Security doors missing front and back. Correct front security door per insurance scope of work #94 Ornamental security door. Current screen door is hung reverse of the correct swing. NOTE: Back door was replaced with a sliding glass door and no security door is possible in this location.

Gutters - missing front and back (work never done).

Correct front gutters per insurance scope of work. R&R gutters and downspouts – Aluminum 46 feet. NOTE: No gutters shown in insurance scope of work for the back.

Front window made smaller without written or verbal approval. Correct front living room window per approved city drawings. 6-0x4-0 shown on drawings.

Fireplace - work never done. Complete fireplace work per insurance scope of work, #121 Soda blasting-clean fireplace slump plus hearth.

Fireplace mantel - work never done. Complete fireplace mantel per insurance scope of work, #122 R&R mantel.

Jetted tub - replaced with a non-jetted tub (without written or verbal approval). Correct master bathroom tub per insurance scope of work, #351 Jetted tub.

French doors - replaced with 1 door (without written or verbal approval). Correct issue of no French Doors. Approved plans show French doors and insurance scope of work, #110 R&R French double doors.

Master bathroom - Lights 1 each above mirror. (picked out three, lights are missing). Correct issue of lighting over double sink in master bathroom. Plans show two (2) lights.

Window screen - 1 screen missing and none are solar per contract. Correct missing screen on back window. Correct issue of missing solar screens. Insurance scope of work, #70 solar window screens (8 each)

Electrical plugs missing per contract. (garage). Add GFCI outlets in garage per approved city plans.

Chandelier bent. Correct bent light fixture by appropriate means.

Not painted right around the end of the tub around the tile. Correct uneven grout and/or paint around master bathroom tub surround at the top.

Respondent Redemption was directed to complete the items listed in the corrective work order on or before October 6, 2017. The October 6, 2017 completion date was, by agreement, extended to October 16, 2017.

The Registrar determined that any workmanship violations alleged in the complaint but not listed in Mr. Grimm’s corrective work order “...were unsubstantiated and do not require corrective action.” [Corrective Work Order, page 2].

On October 19, 2017 Mr. Grimm conducted a Compliance Inspection at the site. At the Compliance Inspection, present were Sophia Campbell – Complainant; Joyce VanCott – Complainant’s Attorney; Angela Mendoza – Respondent and Qualifying Party; Ruben Mendoza – Respondent and Cody Huffaker, Esq. – Respondent’s former Attorney.

Mr. Grimm’s findings from his Compliance Inspection noted that with the exception of painting inside and out of the areas of repair, the multiple items noted in his corrective work order have been completed. Mr. Grimm did note as incomplete the following items:

Front living room window per approved city drawings. [6-0x4-0 shown on drawings] was installed, Drywall and stucco repairs appear complete. Painting not completed inside and out.

Approved plans show French doors and the doors are within the insurance company’s scope of work [#110 R&R French double doors]. Installation of the door is complete, but the painting of the door and the trim is incomplete.

Removal of the single door that was in place on the south wall was never discussed prior to the compliance inspection and was not part of the written directive.

Master bathroom - Installation of the lights are completed and drywall repairs appear complete. Painting of the drywall repairs are incomplete.

Additional GFCI outlets in garage per approved city plans outlets are complete per the approved drawings. Drywall repair appears to be completed. Painting is incomplete.

Not painted [correctly] around the end of the tub around the tile. Correct uneven grout and/or paint around master bathroom tub surround at the top.

Both in his Compliance Inspection notes and in his hearing testimony, Mr. Grimm stated that it was discussed at the Compliance Inspection that from October 16, 2017 and afterword, the Respondent was not allowed access to the site to complete necessary paint and caulking to finish its job.

On October 26, 2017, the ROC issued its citation against the Respondent alleging Redemption may have violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby having violated A.R.S. § 32-1154(A)(3). The Citation also alleges that Redemption may have violated A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action within a reasonable period of time after receiving a written directive from the registrar).

Sophia Campbell testified that the attorneys for the Complainant and the Respondent had agreed to a process whereby the parties were to agree to a set time for the Respondent to enter the Respondent’s home to work. Ms. Campbell stated that repeatedly the Respondent or its agents would just show up without notice when either Ms. Campbell was not present at the home or unable to be present to attend to the Respondent roaming around her house to undertake repairs. Ms. Campbell denies ever refusing access. Instead, Ms. Campbell assert Respondent failed and refused to comply with reasonable advanced notice and failed to appear at times and dates when Respondent said they would be on the site. No evidence was provided that countered this claim.

At hearing, Respondent’s previous legal counsel, Cody Huffaker, Esq., had withdrawn. Respondent appeared without legal counsel. Respondent called no witnesses and tendered no exhibits into evidence. In other words, Respondent rested its case without presenting evidence.

At hearing the Complainant offered the testimony of its expert, Philip Coppala of Philip S. Coppola & Associates, L.L.C., along with his Curriculum Vitae and his “Preliminary Report On Observations 8501 West Mitchell Drive Phoenix, Arizona” Mr. Coppala was accepted by the ALJ as an expert in the area of construction industry standards of practice and construction cost estimation in the Phoenix regional area. Mr. Coppala testified regarding the workmanship and expense related to matters unconnected with the items listed in Mr. Grimm’s Compliance Inspection.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat. section 32-1154(A) provides 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.

*****

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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. (Underscore added.)

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

With the exception of the painting left undone after repairs, the preponderance of the evidence does not demonstrate a workmanship violation on Redemption’s part

The preponderance of the evidence does show that Redemption committed workmanship violations related its failure to paint or caulk areas after it provided repairs or corrections to comply with the ROC’s directive.

. The preponderance of the evidence also shows that Redemption did not comply with ROC’s Directive because it did not complete all the required repair work [i.e., painting and caulking] in the time ROC allotted notwithstanding that a 10 day extension of time to complete was allowed.

The preponderance of the evidence demonstrates that the Complainant did not refuse reasonable access to her home by the Respondent.

Because Redemption has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), its license is subject to discipline. Several factors in mitigation weigh against a severe penalty:

Redemption showed a willingness to complete all the repairs ROC ordered it to complete,

The items that were not timely repaired [paint and caulk] were minor items to fix.

The ALJ takes administrative notice of the ROC’s records which demonstrate that both Angela Mendoza, Respondent and Qualifying Party and Rubin Mendoza were principals in R J M Builders LLC d/b/a R and A Builders which held Arizona Roc License Number B.243646-R. License Number B.243646 was revoked for lack of bond on October 22, 2012 and is still in a revoked status. The ALJ finds this ROC action, on the balance, to be neither aggravating nor mitigating.

Based on the facts and circumstances of this matter, a $200.00 civil penalty is appropriate. See Ariz. Rev. Stat. § 32-1154(E).

RECOMMENDED ORDER

IT IS RECOMMENDED that on or before the effective date of the final Order in this matter Redemption Construction, Inc. must pay to the Registrar of Contractors a civil penalty of $200.00 in certified funds.

FURTHER IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter Redemption Construction, Inc.’s license number 290216 is suspended for one day unless the Registrar of Contractors receives proof that Redemption Construction, Inc. has appropriately painted and as needed caulked the items listed in Paragraph 15 of the Findings of Fact. Sophia Loren Campbell and Redemption Construction, Inc. shall confer and agree upon the date and time for Redemption Construction, Inc. to gain access to Sophia Loren Campbell’s home to make the required repairs. Redemption Construction, Inc. shall reasonably adhere to the agreed date and time of repairs.

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.

Done this 22nd day, January 2018.

/s/ Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors