ALJDEC decisions subject to certification as final

2017A-5734-CHC-ROC · Registrar of Contractors · 2018-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lindsay Marie Kirkpatrick,

COMPLAINANT,

v.

Electric ArtTech LLC, License No: 315087

RESPONDENT.

No. 2017A-5734-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 30, 2018 at 1:00 PM.

APPEARANCES: Lindsay Kirkpatrick (“Complainant”) appeared on her own behalf, with Derrick Kirkpatrick as a witness. Sergei Nosov, Esq. represented Electric ArtTech LLC (“Respondent”), with Aleksandar Tesanovic as its witness. Matthew Gunstra (“Investigator Gunstra”) appeared for the Registrar of Contractors (“the ROC”). Dennis Bierma observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative

Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the ROC.

FINDINGS OF FACT

Background and Procedure

According to the ROC’s public website, on July 26, 2017, the ROC issued License No. 315087 for R-11 Electrical Residential to Respondent. Aleksandar Sasha Tesanovic is listed as the Qualifying Party/Manager on the license. Respondent’s address of record on the license is 7850 E Camelback Rd Unit 303, Scottsdale, AZ 85251-2229.

According to the Complaint, Complainant purchased an online voucher from Angie’s List on October 30, 2017, whereby she paid $447.00 to reserve up to 1,750 square feet of home electrical rewiring or replacement services by Respondent for $2,980.00. The remaining balance, $2,533.00, to be paid directly to Respondent at the time of services rendered. Additional provisions of the voucher include:

Additional square footage may be purchased for $15 per hour

Entire job will be estimated prior to the start of project and offer can be used as credit for larger projects, if needed

Offer includes: new outlets, switches, new circuit layout and wiring, etc.

Offer excludes: drywall; paint; cosmetic repair

Permits are not included

The service provider will not go higher than 14 feet

The fine print affixed to the bottom of the advert reads as follows:

Offer must be purchased through Angie’s List to be eligible for discount

Not valid for cash back

Offer cannot be combined with other specials or offers

Offer cannot be applied to current or past jobs

For residential service only

Appointments are to be performed during normal business hours

Standard cancellations policies apply

Limit 1 offer per household

Image may not reflect exact product/service

This officer is protected by the 30 Day Refund Guarantee (https://www.angieslist.com/guarantee_details/)

Service Quality Guarantee available with purchase by Silver and Gold members (some exclusions apply) (https://www.angieslist.com/ guarantee_details/)

Promotional value expires 6 months from date of purchase; paid value never expires

Prior to the start of the project Respondent came to Complainant’s home to review the work Complainant wanted done. Parties agreed that Complainant’s home was approximately 1,890 square feet, but that Respondent would honor the Angie’s List advertised deal, not charge Complainant an additional fee, and provide her with a requested two additional outlets. The project was estimated to take three days to complete.

The project commenced on October 30, 2017. No contract was executed between Complainant and Respondent beforehand.

A disagreement arose between the parties on or about November 01, 2017, when Respondent informed Complainant that the project was finished. According to Complainant the job was unfinished, and the parts of the job that were complete were done incorrectly. Respondent disagreed and demanded Complainant remit the outstanding $2,533.00 owed for the project. Complainant refused, and countered that Respondent needed to complete/fix the work in question prior to her remitting any monies. Respondent refused to do further work on the project.

On November 13, 2017, Complainant filed a complaint with the ROC alleging job abandonment against Respondent based on an electrical rewiring project at 1650 E. 2nd Ave., Mesa, Arizona 85204. Complainant’s case was assigned Complaint Number 2017-5734.

On November 13, 2017, the ROC assigned Complaint Number 2017-5734 to Investigator Gunstra for review.

On November 20, 2017, Investigator Gunstra issued a letter to the parties notifying them that a jobsite inspection was scheduled for December 05, 2017. A subsequent notification was issued on November 27, 2017, notifying the parties that the inspection had been rescheduled for December 14, 2017, due to a scheduling conflict.

On December 14, 2017, Investigator Gunstra made note of the following at the completion of his jobsite inspection at Complainant’s residence:

It appears that Complainant hired Respondent after finding his adverstisement on Angie's List. Reading the offer it appears to include a whole home rewiring or replacement including all devices (outlets, switches). In speaking with both parties it is apparent there is a difference of opinion on what work was to be performed at Complainant's home. The home is a three bedroom house that is around 1850 s.f. Complainant states she discussed the home being larger than the adverstisement includes but says that Respondent accepted this and proceeded without a verbal or written change order to the agreement. Respondent did not provide a written estimate or contract. At this time there are two new outlets installed by Respondent (one in garage and one exterior) he says he installed at Complainant's request. Respondent says he separated an existing circuit into multiple ciruits but no other work has been performed in the home. No new wiring, no new outlets, no new switches. Respondent feels he has performed an amount of work that equals the advertisement and has stopped work. [sic]

In my opinion the lack of a written estimate or contract is the root cause of this issue. It also does not appear that Respondent has performed the scope of work included in the Angie's List offer. I feel that Respondent has not completed this job per contract or verbal agreement and will direct that he do so. Governing Rule: Workmanship Rule: R4-9-108

On December 18, 2017, Investigator Gunstra issued two warning letters to Respondent.

The first letter was issued because Investigator Gunstra believed that Respondent had improperly begun Complainant’s project before insuring that requisite permits had been obtained. Investigator Gunstra warned Respondent that his alleged conduct was in violation of the International Residential Code, the International Building Code Chapter 1, Sections R105 and 105, and Ariz. Rev. Stat. § 32-1154(A)(2). Investigator Gunstra also put Respondent on notice that his contracting license could be disciplined, including suspension or revocation, for such alleged violations under statute.

The second letter was issued because Investigator Gunstra believed that Respondent failed to enter into a contract, containing nine codified elements, with Complainant as required in Ariz. Rev. Stat. § 32-1158(A).

On December 18, 2017, Investigator Gunstra also issued a Directive From The Registrar to Respondent. Respondent was informed that the ROC substantiated that his work failed to meet minimum workmanship standards pursuant to Ariz. Admin. Code R4-9-108. Respondent was advised that failure to comply with the Directive constituted a violation of Ariz. Rev. Stat. § 32-1154(A)(22), and could result in the issuance of a Citation, discipline of Respondent’s license, and the issuance of a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E) of up to $500.00. Respondent was put on notice that he had until 5:00 p.m. on January 05, 2018, to notify the ROC of his full compliance, and that he was to remedy the following violation by appropriate means:

Complaint Item 1: Purchased Angie's List deal home electrical rewiring or replacement and 1 circuit was replaced with 4 (all in garage). Home electrical rewiring or replacement for homes up to 1750 s.f. not completed. Offer includes: new outlets, switches, new circuit layout and wiring, etc. Not completed. Only partial work done. Still have ungrounded outlets and GFCI and non-GFCI together.

Directive: Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.

Investigator Gunstra noted that no work could commence on Complainant’s project until the required building permits had obtained.

Per an agreement between the parties on January 06, 2018, with the permission of the ROC, the Directive deadline was extended to January 12, 2018.

Respondent did not comply with the ROC’s Directive by the January 12, 2018, deadline because Complainant would not grant him “unfettered access” to her residence.

Because the parties had not obtained permits necessary to resume work on the project by January 12, 2018, the ROC again extended the Directive deadline until the date the permits were obtained, plus fifteen days. The case was temporarily closed on January 31, 2018, to allow the parties’ time to secure the requisite building permits.

The ROC reopened the case on February 09, 2018, when Complainant notified the agency that the requisite building permits has been obtained. Investigator Gunstra notified the parties that the Directive deadline was reset for February 27, 2018.

Respondent did not comply with the ROC’s Directive by the February 27, 2018. The case was forwarded to the ROC’s legal department, who issued a Citation to Respondent on March 01, 2018.

The Citation listed two charges. Charge 1 was for violation of Ariz. Admin. Code R4-9-108, Minimum Construction Standards, and thereby Ariz. Rev. Stat. § 32-1154(A)(3); and Charge 2 was for violation of Ariz. Rev. Stat. § 32-1154(A)(22), failure to take appropriate corrective action.

Pursuant to Ariz. Rev. Stat. § 32-1155 Respondent was required to submit an Answer to the Citation by March 16, 2018.

Because Respondent submitted his Answer on March 15, 2018, contesting the charges in the Citation, the ROC forwarded the matter to the Office of Administrative Hearings, an independent state agency, with a Notice of Hearing set for May 07, 2018. For various reasons the matter was continued multiple times and ultimately heard on May 30, 2018, to determine whether Respondent violated Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and Ariz. Admin. Code R4-9-108 as charged by the ROC.

Hearing Evidence

Complainant appeared with Derrick Kirkpatrick as a witness, and submitted fifteen exhibits into the record. Respondent appeared with counsel, Sergei Nosov, Esq., and submitted four exhibits into the record. Investigator Gunstra also appeared. The hearing file was admitted into the record as well.

At the hearing, Respondent testified that after Complainant filed her complaint with the ROC, he sent her several settlement offers, through his attorney, which she declined. Respondent also testified that he was afraid to finish Complainant’s project due to safety concerns, but conceded that he never raised concerns with Complainant or the ROC. Respondent testified that he believed completing the project would have violated an Occupational Safety and Health Administration policy, but was unable to name a specific policy or applicable rule.

Complainant testified although she was uncomfortable giving Respondent “unfettered access” to her home, and signing a written contract that included conditions outside the scope of their original agreement, that by the time she obtained the building permits she resigned herself to the idea regarding access and informed Respondent of such through his attorney. Respondent did not, however, finish the project or make any corrections to poorly performed work prior to the expiration of the Directive deadline imposed by the ROC.

Investigator Gunstra testified that while Respondent should have executed a written contract with Complainant, for the purposes of this case her purchase of Respondent’s Angie’s List voucher was sufficient, and that the deal outlined the scope of work and associated costs. The parties both agreed that the project should have taken approximately three full days to complete. Investigator Gunstra testified further that the Directive outlined exactly what and how Respondent needed to remedy the workmanship of Complainant’s project, and that even though he had been given the statutorily required amount of time Respondent failed to do so.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the ROC’s public website on May 30, 2018. License No 315087 is current, and in good standing with prior discipline shown. There is one open complaint against the license, however, which is presumably Complainant’s.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Admin. Code R4-9-108 holds, in pertinent part:

A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

Ariz. Admin. Stat. § 32-1154(A)(3) holds that a holder of a license may not violate a rule adopted by the ROC.

Ariz. Admin. Stat. § 32-1154(A)(22) holds, in pertinent part, that a holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

Ariz. Admin. Stat. § 32-1154(E) holds, in pertinent parts, that the ROC may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.

It is undisputed that the ROC issued its Directive to Respondent on December 18, 2017, and required Respondent’s full compliance by February 27, 2018. It is also undisputed that Respondent failed to comply.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely complete Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish.

Respondent’s general assertion that completing Complainant’s project was a health and safety hazard and/or an OSHA violation is meritless. No evidence was submitted to lend a tenuous amount of credibility to the assertion, and Respondent conceded that he did not raise said concern with Investigator Gunstra prior to the expiration of the Directive deadline.

The record shows that Respondent failed to adhere to an ROC Directive, and had no affirmative defense(s) for doing so.

Because Complainant established by a preponderance of the evidence that Respondent failed to perform the scope of work included in the Angie's List offer she reserved with her payment of $447.00, Complainant has shown that Respondent did not completed the job per their agreement pursuant to Ariz. Admin. Code R4-9-108, and thereby Ariz. Rev. Stat. § 32-1154(A)(3).

Because Complainant established by a preponderance of the evidence that Respondent failed to take appropriate corrective action to comply with the Directive that was issued in this matter, Complainant also established cause for the ROC to suspend or revoke Respondent’s contractor’s license under Ariz. Admin. Stat. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that that on the effective date of the final order in this matter, Respondent Electric ArtTech LLC License No. 315087 shall be suspended for five (5) business days.

It is further recommended that the ROC require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the ROC’s Order, the ROC revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 five days from the date of that certification.

Done this day, June 27, 2018.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors