ALJDEC decisions subject to certification as final

2017A-5411-CHC-ROC · Registrar of Contractors · 2018-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vern Willson, Shirley Willson and Paula O’Neal,

COMPLAINANT,

v.

Dun Rite Construction & Handiworks LLC,

License No: 308965

RESPONDENT.

No. 2017A-5411-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 21, 2018, 1:00 P.M.

APPEARANCES: Vern Wilson, Shirley Wilson, and Paula O’Neal, Complainants, appeared on their own behalf; Michael Burch appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Dun Rite Construction & Handiworks, LLC (Respondent), is the holder of License Number 308965 issued by the Registrar of Contractors (Registrar).

2. On or about October 25, 2017, Vern Wilson, Shirley Wilson, and Paula O’Neal (Complainants), filed a Complaint against Respondent with the Registrar alleging poor work in connection with remodeling work performed by Respondent at Complainants’ residence in Mesa, Arizona.

3. Upon completion of an inspection performed by the Registrar on December 6, 2017, the Registrar issued a Directive, dated December 8, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 23, 2017, as follows

Complaint Item 1: Drywall textures, tape & texture work poorly done throughout house

Inconsistent drywall orange peel texture applied on living room walls as well as poor paint cut in between ceiling and walls and tape seams visible on the ceiling, inconsistent drywall orange peel texture applied on living room walls and, raised and poorly performed texture around receptacle on north (N) wall, texture applied on co/axial receptacle plate located on north (N) wall of living room, inconsistent/poorly applied orange peel texture applied around windows and window sill located on north (N) wall of living room, inconsistent drywall orange peel texture applied on front left bedroom walls as well as poor paint cut in between ceiling and walls and tape seams visible on the ceiling, inconsistent/poorly drywall orange peel texture applied on hallway walls, inconsistent/poorly drywall orange peel texture applied on front right bedroom walls, poor paint cut in between ceiling and walls and tape seams visible on the ceiling in the hallway bathroom, inconsistent/poorly drywall orange peel texture applied on hallway bathroom walls and, inconsistent drywall orange peel texture applied on master bedroom walls as well as poor paint cut in between ceiling and walls and tape seams visible on the ceiling .

Complaint Item 2: Put a hole in the bath tub & refuses to replace bath tub

Small hole in in the floor of the master bathroom tub at southwest corner.

Complaint Item 3: Paid to fix 2 ceiling fans that wobble & didn’t fix them

Noticeable wobble of ceiling fan in the living room and kitchen when operated.

Complaint Item 8: Mike removed the trim around the furnace area & didn’t finish the opening with texture or rehang trim, they threw out existing trim

Properly finish opening around furnace area and apply orange peel texture and or rehang trim.

Complaint Item 18: The paint job has several places that need touch up work

Areas in the residence that necessitate paint touch-up.

5. When the Registrar was advised that the foregoing items were not corrected before the Directive deadline, the Registrar then issued a Citation to Respondent, dated December 27, 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include information in contract);

c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. 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 21, 2018, at 1:00 P.M. Complainant Paula O’Neal testified on her own behalf; Ron Mudick testified on behalf of Complainants. Michael Burch, owner of Respondent, testified on behalf of Respondent. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainants and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that with respect to all of the items listed in the Directive, none had been completed although Respondent had made some conditional offers to perform corrective work which Complainants had rejected.

8. Complainant Paula O’Neal testified as to the deficiencies in Respondent’s work and confirmed that all of the items listed in the Directive still remain uncorrected. She further testified that once the Directive was issued, Respondent waited until the deadline date to even contact her. She admitted that Respondent had conditionally offered to repair deficient textured areas, pay $300 for the bath tub damage, and refund $300 for not repairing the ceiling fans. Ms. O’Neal also testified that the original contract price, dated May 18, 2017, was for $7,800.00. (Complainants’ Exhibit 9). A second contract between the parties, dated June 15, 2017, reflected a contract price of $1,800.00. (Complainants’ Exhibit 9).

9. Ron Mudick testified on behalf of Complainants that he is the owner of Paragon Home Services and that he has over 31 years of experience with mobile and manufactured homes. He testified that he considered the texture work done by Respondent to be a “horrible” job, estimates that there were 40 to 60 areas that need to be fixed, and that he could not find one wall that had consistent texture. He further testified that the sheet rock was not sanded before texturing and that the “flat spots” on the walls were caused by too much texture. Concerning the hole in the bathtub, he testified that it could be repaired without replacing it. He also testified he has also done other work for Complainants but that he was not seeking a job of repairing Respondent’s work.

10. Michael Burch on behalf of Respondent testified that he does not dispute that deficiencies exist in the work, but he differs as to the extent of those deficiencies. He testified that he agreed that certain of the textured areas should be taken care of. Indeed, Mr. Burch states in a text on or about October 20, 2017, “I don’t hesitate to admit that the drywall could look better....” (Complainants’ Exhibit 2). He stated that his resolution offered prior to the issuance of the Directive (and after the Directive) was that Complainants move all of their furniture out of the home at their expense, that they move out during the construction, and that they also pay for the materials to correct the deficiencies. He also testified he offered $300 in lieu of repairing the bath tub and a refund of $300 for not repairing the ceiling fans as he was contracted to do.

11. Mr. Burch also testified that the Directive was not “in his hands” until December 19, 2017, even though the Directive was dated December 8, 2017. He did not specify whether he received it in the mail on December 19, 2017, or whether he simply did not notice or open it until that day. Thereafter, texts between the parties reflect that he then did not contact Complainants until December 23, 2017, the Directive deadline date. (Complainants’ Exhibit 2). Mr. Burch testified that he misread the Directive and thought he was required only to contact Complainants by the Directive deadline date rather than complete the corrective work by that date. He further added that he offered prospective dates to do the corrective work after the Directive deadline date, but with conditions as specified above.

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, Complainants 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) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following

3. Violation of any rule adopted by the registrar.

...

12. Failure in any material respect to comply with this chapter.

...

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. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:

...

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....

7. Complainants have presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Specifically, with respect to the Directive items, Respondent admitted that the items exist, although perhaps not to the degree as described in the Directive.

8. Complainants have presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the first contract between the parties, dated May 18, 2017 (in excess of $1,000.00), did not include details of the notice of the owner’s right to file a complaint with the Registrar. Specifically, the notice is not prominently displayed and is lacking the Registrar's website address and a statement that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The second contract between the parties, dated June 15, 2017, omits the notice altogether.

9. Complainants have presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. The evidence demonstrated that once Respondent received the Directive, it waited until the Directive deadline date to even contact Complainants. Respondent’s excuse that it misread the Directive is not a defense to timely performing corrective action. Further, if Respondent truly did not receive the Directive until 11 days after it was issued, it was incumbent upon Respondent to immediately bring that to the Registrar’s attention and request an extension.

10. The Tribunal finds that there is no valid justification for Respondent not performing the corrective work. It is acknowledged that Respondent made a conditional offer (rejected by Complainants) both before and after the Directive was issued to correct the deficiencies if Complainants would move all of their furniture and belongings out of the home at Complainants’ expense, if Complainants would move out of the home during the corrective work, and if Complainants would also pay for all necessary materials. The Tribunal considers this offer to be unreasonable. Respondent performed the original work with the furniture in the house and was required to move it from room to room to do the original work. There was no evidence presented to suggest that this could not have been done again. The fact that furniture would have to be moved from room to room extending the time to complete the corrective work is not a valid justification for failing to perform corrective work. Further, the liability concerns Respondent claims exist if he handles Complainants’ furniture and belongings during corrective work is also not a legitimate excuse for failure to perform corrective work.

11. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Dun Rite Construction & Handiworks, LLC’s, License Number 308965 is suspended for five days.

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, March 13, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors