ALJDEC decisions subject to certification as final

2017A-4951-CHC-ROC · Registrar of Contractors · 2018-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lawrence Lim,

COMPLAINANT,

v.

Carrasco Design and Build LLC,

License No:

252134

RESPONDENT.

No. 2017A-4951-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 7, 2018, 8:30 A.M.

APPEARANCES: Complainant Lawrence Lim appeared on his own behalf; Felix Carrasco appeared on behalf of Carrasco Design and Build LLC, Jack Grimm appeared on behalf of the Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

1. Carrasco Design and Build LLC (Respondent), is the holder of License Number 252134 issued by the Registrar of Contractors (Registrar).

2. On or about September 29, 2017, Lawrence Lim (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work on the part of Respondent in connection with the remodeling of a bathroom by Respondent at Complainant’s residence at 4770 E. Casey Lane, Cave Creek, Arizona.

3. After the Registrar’s inspection of the job site on October 24, 2017, the Registrar issued a Directive dated October 31, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by November 17, 2017, as follows:

a. Tile work in shower not level. Correct random tiles with lippage greater than 1/32 inch. Correct inconsistencies and lippage at deco band.

b. Grout work incomplete, several holes on the wall and grout Stains on shower floor. Correct all locations with missing grout.

c. Paint job - Unfinished and not touched up after repairs. Correct location in corner of knee wall where nylon mesh is showing and repaint.

d. Tiles not cleanly cut - Raw edges present, not sanded. Correct poorly cut tiles at end of knee wall. Correct poorly cut tiles on the right entering the shower about 5 feet from the floor.

e. Shower glass unsealed - water gets through from the shower.

Seal shower glass from leakage.

f. Mess from tile cutting in the garage - never cleaned. Clean cutting dust from garage. Clean all locations at the exterior where a mess was made.

g. Shower floor not properly sloped - water pooling in certain section of shower. Correct shower floor in location of pooling.

4. When the Registrar was advised that Respondent had performed no corrective work, the Registrar then issued a Citation to Respondent on November 17, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 7, 2018, at 8:30 A.M. At the hearing, Complainant testified on his own behalf; Felix Carrasco, owner of Respondent, testified on behalf of Respondent. Jack Grimm, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that none of the items in the Directive had been corrected by Respondent.

7. As it relates to the Directive, Complainant testified that once the Directive was issued, he requested a bid from another contractor to correct the deficiencies in Respondent’s work. He stated that the contractor found it difficult to arrive at a bid to simply repair the items because, according to that contractor, repairing random tiles could damage the wall behind it. As a result, Complainant stated the contractor recommended the entire shower be redone and provided a bid on either November 3, 2017, or November 6, 2017, in the amount of $8,500.00 to redo the entire shower.

8. Felix Carrasco on behalf of Respondent testified that he does not dispute the specific items to be corrected listed n the Directive. However, he testified that Respondent has at all times been willing and able to correct the deficiencies or have them corrected. He indicated he could have done 90% of the corrections himself.

9. The Directive was issued on October 31, 2017, and reflects that compliance was required by November 17, 2017. According to Mr. Carrasco, he contacted Complainant on November 2, 2017, by email (Respondent’s Ex. 1) and again on November 9, 2017, by email (Respondent’s Ex. 1) to schedule the corrective work.

10. Mr. Carrasco further testified that Complainant refused to allow him to personally do any corrective work. As a result, according to Mr. Carrasco, to do the corrective work, Respondent engaged another experienced licensed contractor which is reflected in Respondent’s email of November 9, 2017. Also reflected in that email is notification from Respondent to Complainant that Respondent had purchased tile for the corrective work with the last order to be delivered on November 15, 2017.

11. Complainant testified that ultimately Respondent’s new subcontractor scheduled November 18, 2017, to do the corrective work. However, Complainant stated he was unavailable that day, and that that date in any event was too late because it was one day after the Directive deadline. He further testified that he had reservations about Respondent’s subcontractor based on reviews he read online.

CONCLUSIONS OF LAW

1. 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.

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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) in pertinent part includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

3. Violation of any rule adopted by the registrar.

...

22. 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. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Respondent does not dispute any of the items in the Directive. Accordingly, Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for failing perform all work in a professional and workmanlike manner.

7. Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). Rather, the evidence supports a finding that there is a valid justification for Respondent’s failure to complete those repairs prior to the Directive deadline.

8. Respondent has made a good faith and diligent effort in attempting to schedule the corrective work. The evidence supports a finding that Mr. Carrasco on behalf of Respondent could personally have repaired 90% of the corrective items but that Complainant refused to allow him personally to do any corrective work. As a result, Respondent proposed to hire another subcontractor to complete the work.

9. While Complainant contends an independent contractor he solicited recommended that the entire shower be redone, that evidence in itself is insufficient to establish that the entire shower in fact had to be redone. Further, the fact that the corrective work was scheduled to be performed by Respondent’s new subcontractor on November 18, 2017, the day after the Directive deadline, does not appear to have been the fault of Respondent. Respondent presented two emails dated November 2, 2017, and November 9, 2017, reflecting its efforts to schedule the repairs before the deadline and its ordering of the tile to complete the repairs. The delay in scheduling appears to have resulted from Complainant’s refusal to permit Mr. Carrasco on behalf of Respondent to do the work himself and in essence requiring Respondent to engage a new subcontractor.

10. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3). However, based on Respondent’s efforts to schedule a time to correct the deficiencies, the Tribunal believes Respondent should be afforded another opportunity to correct the deficiencies. Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that 14 days from the effective date of this Order, Carrasco Design and Build, LLC’s, License Number 252134 shall be suspended for one day unless the Registrar receives and accepts written verification that Carrasco Design and Build, LLC, has corrected or caused to correct the remaining items listed in the Registrar’s Directive, dated October 31, 2017.

It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected the remaining items, the Registrar may close the Complaint in Case No. 2017A-4951-CHC-ROC.

. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, February 20, 2018.

/s/ Roger A. Geddes_____

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors