ALJDEC decisions subject to certification as final

2017A-418-CHC-ROC · Registrar of Contractors · 2017-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jo Ann McCormick,

COMPLAINANT,

v.

1 2 3 Flooring Inc., DBA: 1 2 3 Electrical,

License Nos: 306848, 273326, 293292,

RESPONDENT.

No. 2017A-418-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 23, 2017

APPEARANCES: Jo Ann McCormick (Complainant) appeared on her own behalf. 1 2 3 Flooring Inc. dba 1 2 3 Electrical was represented by is qualifying party, Kamran Afshari.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 5407 East Kelton Lane, Scottsdale, Arizona 85254.

Respondent holds Arizona Contractor’s License Nos: 306848, 273326 and 293292.

On January 23, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on her home projects including but not limited to, problems with drywall, poor installation of two vanities, a drain that detached and issues with recessed lights. All told, the complaint contained 20 items.

After the filing of the complaint, but before any jobsite inspection by the Registrar, on February 18, 2017 Respondent contacted Complainant and indicated it wanted to correct the issues. Respondent went to Complainant’s home, but no schedule of repairs was agreed upon. Complainant requested that Respondent prepare a proposal regarding the repairs.

Thereafter, the Registrar assigned investigator Steve Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on February 27, 2017, and notified Complainant and Respondent of the time and place of the inspection. The testimony was unclear whether Klein was erroneously informed by Respondent that the parties had resolved the complaint, but Klein conducted his jobsite inspection as scheduled.

Both Complainant and Respondent were present at that inspection. Klein indicated that at the time of an inspection, he substantiated six of Complainant’s allegations regarding poor cut outs in cabinets, use of the wrong tile pattern during installation of tile (diagonal versus square) such that the new installation did not match the pattern of the existing tile, issues with drywall patches on the ceiling and the existence of a stain on one of the vanities.

On February 27, 2017, Klein sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 March 15, 2017.

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

Complaint Item 9: Contractor hacked vanity and then charged $250 for moving drain.

Poor cutouts in cabinet for plumbing drain pipe.

.

Complaint Item 12: New vanity for guest room required tiling to area. Contractor unnecessarily laid tile in master bath and charged $

Existing tile is installed in a diagonal pattern and Respondent used tile supplied by the Complainant to install replacements in a square pattern.

Complaint Item 13: Incorrectly laid 3 tiles in guest bath which are an eye sore and charging $460 removal and repair is necessary.

Existing tile is installed in a diagonal pattern and Respondent used tile supplied by the Complainant to install replacements in a square pattern.

Complaint Item 16: Quote $1200. 6 recess kitchen, 8 recess game room, lighting fan install kitchen hanging charge $1400 +$175.

Items in the allegation represent disputed money amounts, which the ROC lacks jurisdiction, However Respondent agrees to correct ceiling drywall patches.

Complaint Item 19: Contractor quoted $75.00 to install wood around the vanity and insert a middle section in-between the 2 vanities in master bathroom. He placed holes in the new vanity, applied the stain like he was finger painting resulting in damages to new vanity and cost to remove, repair and redo existing work.

Verified the workmanship issue should be corrected. (staining)

Complaint Item 20: Contractor had remove[d] vanity lights because of his error and now is charging me.

No written record provided at time of inspection. I’m unable to substantiate the issues, however drywall and paint around the fixture needs to be corrected.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Beginning on February 27, 2017, Cyrus Afshari texted and emailed Complainant asking when he could come to the house and perform corrective work. The parties’ communication continued daily back and forth with Cyrus Afshari requesting dates for access to the home and Complainant insisting on being given a proposal for repairs.

Complainant testified that she believed that Respondent was playing games with her and did not really intend to comply with the Directive despite its offers to do so. She worried that if she let Respondent into perform corrective work, she would owe Respondent more money. Complainant noted that she telephoned Klein during the Directive period to discuss the protocol on how to proceed with Respondent.

Klein did not recall the precise conversation he had with Complainant, but said it was his practice to advise that a Respondent had the right to perform corrective work and was entitled to access to do so. He noted that the Registrar did not get involved in money disputes.

Complainant did not give Respondent a date during the Directive period on which it could perform corrective work. Instead on March 9, 2017 in a text message read into the record, Complainant stated:

Cyrus no disrespect intended. Your company began this job in August. I’m done with this. You have 15 days from the report [Directive]. Contractor of my choice. . . quote, money order in hand for full quote, customary and reasonable before the 15th due date. Not going back and forth.

After the time period for compliance with the Directive, Complainant informed Klein that Respondent had done no work to comply with the Directive. Klein therefore forwarded the matter to the Registrar’s legal department for review.

On March 29, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Hearing was convened at the Office of Administrative Hearings on May 23, 2017.

Complainant testified consistently with the facts detailed above as did Klein and Complainant’s friend, Anthony Sadero.

Respondent agreed that there were some problems with its work that required correction. It characterized its work on Complainant’s residence as unfinished and incomplete. Respondent maintained that had Complainant granted it access to her home during the Directive period, it would have finished the job and corrected the issues specified in the Directive. Respondent noted that it made Cyrus Afshari available to Complainant for a two-week period during the Directive period, but that all of its efforts to gain access to Complainant’s residence failed.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

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).

The evidence established that Respondent attempted to compete at least some of the corrective work following the Directive being issued, but that Complainant would not allow Respondent to enter the property. Rather, Complainant demanded via text message that Respondent pay a contractor of her choice to complete the work or provide a repair proposal before beginning its work even though the Directive specified the repairs to be done and the timeframe for doing so. Because Complainant did not allow access for Respondent to comply with the written directive, she did not establish that Respondent violated A.R.S. § 32-1154(A)(22).[1]

While there were workmanship issues as identified in the written directive, contractors are not expected to perform flawless work without an opportunity to correct it. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written directive. This Tribunal concludes that the preponderance of the evidence of record was insufficient and failed to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3),[2] and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar dismiss Complainant’s complaint.

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 40 days from the date of that certification.

Done this day, May 31, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors