ALJDEC decisions subject to certification as final
2017A-4634-CHC-ROC · Registrar of Contractors · 2018-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Donald Gene Naismith,
COMPLAINANT,
v.
Dreamstyle Remodeling, Inc. ,
License No: 260542
RESPONDENT.
No. 2017A-4634-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 13, 2018, with the record held open until June 20, 2018.
APPEARANCES: Complainant Donald Gene Naismith appeared on behalf of himself. Guy Bluff, Esq. appeared on behalf of Respondent Dreamstyle Remodeling, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On December 4, 2017, the Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on January 30, 2018, by the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Dreamstyle Remodeling, Inc., (“Dreamstyle”), holds license 260542 issued by the Registrar.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Dreamstyle may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), (A)(12) and (A)(22). The Registrar also alleges that Dreamstyle may have violated Ariz. Rev. Stat. section 32-1158(B). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Dreamstyle’s license.
On January 12, 2017, Dreamstyle and Complainant Donald Gene Naismith entered a home remodeling contract. Under the contract, Dreamstyle would replace the windows in Mr. Naismith’s home.
The contract did not include an estimate of the date that the work would be completed.
On or about March 3, 2017, Dreamstyle began work under the contract.
On or about May 12, 2017, Dreamstyle completed the work.
On or about September 6, 2017, the Registrar received a Complaint from Mr. Naismith alleging that Dreamstyle performed poor work when it replaced the windows in his home.
On or about September 29, 2017, Registrar Investigator John Smith (“Investigator Smith”), conducted a job-site inspection in response to the Complaint.
At the job-site inspection, Investigator Smith informed Mr. Hewlen that he needed to obtain a permit from Pima County to replace the windows.
11. It is undisputed that Dreamstyle did not obtain a permit to replace Mr. Naismith’s windows before it began construction in March of 2017. However, Dreamstyle’s general manager, Terry Lee Hewlen, was not aware that Pima County required a contractor to obtain a permit before replacing windows in a home.
12. Mr. Hewlen attempted to apply for a permit in person from Pima County. Pima County informed Mr. Hewlen that he was required to apply online.
13. On October 2, 2017, Investigator Smith issued a Directive to Dreamstyle. The 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:
Permit needs to be obtained by property owner, or property owner’s authorized agent. If the local jurisdiction finds corrective issues relating to the respondents work, the respondent will be required to correct those issues by appropriate means. Approved inspection results to be sent to the ROC Investigator.
“Paint coming off new stucco around windows and sliding door.” This was described to be around all windows and around the patio door. Also included is some unpainted stucco around the south window by the east corner.
“Stucco cracked on house from putting in new windows.” This was described to be stucco cracks by the west window, by the east window, and by the south window close to the west corner.
“Kitchen window damaged by use of a crow bar to remove window on inside.” This was described to be bent/damaged corner bead inside the kitchen window.
“Drywall cracked in master bath on inside due to putting in new window.” This was described to be a crack in the drywall at the right side of the window in the master bath.
14. Through the Directive, the Registrar ordered Dreamstyle to remedy the
alleged violations by appropriate means no later than October 24, 2017.
15. On October 16, 2017, Mr. Hewlen applied for a permit online from Pima County.
16. On October 17, 2017, Pima County rejected the application because it did not include a floorplan of the home showing where the replacement windows would be located.
On October 19, 2017, Mr. Hewlen asked Mr. Naismith if he could enter his home to draw a diagram of his house.
17. Mr. Naismith did not allow Mr. Hewlen or Dreamstyle to enter his home.
18. Dreamstyle was required to obtain permission to make the repairs listed on the Directive from the Architectural Review Committee of Mr. Naismith’s Homeowner’s Association before beginning work.
19. On October 23, 2017, Investigator Smith told Mr. Naismith that Pima
County would not approve the permit without a floor plan. Investigator Smith asked
Mr. Naismith if he would allow Dreamstyle additional time to perform the corrective work.
20. Mr. Naismith denied Dreamstyle additional time to perform the corrective work. Mr. Naismith told Investigator Smith that Dreamstyle had known about the permit long before it submitted the application.
21. On October 25, 2017, Investigator Smith informed Mr. Naismith that Dreamstyle had applied for a permit but that a floor plan was needed before the permit would be approved. Investigator Smith told Mr. Naismith that it is normal for the county to request the permit to ensure proper egress is maintained in all sleeping rooms. Mr. Naismith informed Investigator Smith that the HOA had not approved the corrective work.
22. On November 3, 2017, Investigator Smith completed a compliance inspection and determined that Dreamstyle had not performed the corrective work listed in the Directive. Mr. Naismith provide the floor plan of his home to Investigator Smith. Mr. Naismith also provided Investigator Smith with documentation showing that the HOA had approved the corrective work. Although the HOA approved the corrective work on October 20, 2017, Dreamstyle was not informed of the approval until November 3, 2017. Investigator Smith provided the floor plan to Dreamstyle. Investigator Smith encouraged the parties to work together. However, Mr. Naismith expressed that he wanted to go to “Court.”
23. Pima County did not issue a window replacement permit for Mr. Naismith’s home until November 21, 2017.
24. On November 28, 2017, Mr. Hewlen called Mr. Naismith to attempt to perform the corrective work. They arranged to speak again at about 8:30 a.m. on November 28, 2018. Mr. Hewlen contacted Mr. Naismith on November 29, 1018 and left him Mr. Naismith a message. Mr. Hewlen contacted Mr. Naismith on November 30, 2018 because he had not heard back from Mr. Naismith. Mr. Naismith asked Mr. Hewlen if he could tell the difference between Thursday and Friday and told Mr. Hewlen that he would see him in court.
25. At hearing, Mr. Naismith testified on behalf of himself. Dreamstyle presented the testimony of Mr. Hewlen, Arden Young and Jeffrey Allman. Investigator Smith also provided testimony.
26. Mr. Naismith contended that Dreamstyle did not use “quality” material and people when it replaced his windows. Mr. Naismith also testified that his back window does not work the way that it should.
27. Mr. Hewlen testified that the City of Tucson did not require a permit before replacing windows in a home. Mr. Hewlen was familiar with the City of Tucson rules.
28. Dreamstyle contended that it made several attempts to correct the work before the complaint was filed and after the Directive expired. Furthermore, Dreamstyle contended that it was unable to obtain the permit needed to make the repairs because Mr. Naismith denied it access to his home to obtain the floor plan.
29. At hearing, Dreamstyle submitted into evidence a contract which complied
with the requirements of Ariz. Rev. Stat. section 32-1158(B). The contract included an estimate of the time for completion of the work to be performed.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
section 32-1154(A).
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.
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. Ariz. Rev. Stat. section 32-1154 (A)(22) provides:
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.
5. 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.
6. The preponderance of the evidence shows that Dreamstyle did not provide Mr. Naismith with a contract which included an estimated date of completion on January 12, 2017, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22) and Ariz. Rev. Stat. section 32-1158(A) and (B). However, Dreamstyle provided a copy of its revised contract at the hearing which complies with Ariz. Rev. Stat. section 32-1158(A) at the hearing.
7. The preponderance of the evidence does not show that Dreamstyle violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. Naismith denied Dreamstyle access to his home to obtain a floor plan to obtain the permit. Mr. Naismith denied Dreamstyle’s request for an extension of time after providing the floor plan one day before the deadline to comply with the Directive expire. Furthermore, Mr. Naismith expressed that he did not want to work with Dreamstyle but wanted to go to “Court”.
8. 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 Ariz. Rev. Stat. section 32-1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32-1154(A)(22).
9. The preponderance of the evidence established that Respondent did not
obtain a permit from Pima County before he began work on Mr. Naismith’s property, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Dreamstyle Remodeling, Inc., License No: 260542 for one day.
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 day, July 13, 2018
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors