ALJDEC decisions subject to certification as final

2017A-6087-CHC-ROC · Registrar of Contractors · 2018-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven J Hellem,

COMPLAINANT,

v.

Degre Inc. dba,

Servpro Of Lake Havasu City Bullhead City Kingman,

License No: 290800

RESPONDENT.

No. 2017A-6087-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 11, 2018

APPEARANCES: Steven Hellem, Complainant, Greg Wilhelm, Respondent and

Qualifying Party, Joy Noel, Respondent’s Service Manager, Cliff Corlett,

Inspector, Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D, Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, Degre Inc., d/b/a, Servpro of Lake Havasu City Bullhead City Kingman [hereinafter, “Degre”] is the holder of License number 290800 issued by the Arizona Registrar of Contractors [hereinafter, “ROC”].

On or about September 30, 2016, Complainant entered into a contract with Degre to provide restorative construction on Complainant’s water damaged home interior. The scope of work was being funded by the Complainant’s insurance company.

On or about December 7, 2017, the Registrar received a Complaint against Degre from Complainant alleging Degre [performed poor work.

The Registrar assigned the Complaint to Investigator Cliff Corlett. On or about January 9, 2018, after a jobsite inspection, Investigator Corlett issued a Written Directive [hereinafter “CWO”] to Degre where workmanship standard deficiencies were substantiated in four out of the fourteen items complained of in the Complaint. The CWO provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 26, 2018. [emphasis added].

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

Complaint Item 1: Backsplash in kitchen (never installed).,, THE RESPONDENT SHOULD PROPERLY PROVIDE AND INSTALL A BACKSPLASH OF COMPARABLE DESIGN AND MATERIALS AS WHAT WAS ORIGINALLY INSTALLED....Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 2: Utility sink in laundry room stained from workmen washing out brushes. Needs to be replaced...RESPONDENT SHOULD PROPERLY REPLACE THE LAUNDRY ROOM SINK. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 4: Pocket door in guest bath does not track properly. (makes noise).Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 9: Window frame in master bath needs to be put up.

Investigator’s Observation: Window blind in master bath toilet room appears to have a horizontal valence / trim frame that has not been re-installed. RESPONDENT SHOULD PROPERLY RE-INSTALL THE HORIZONTAL BLIND TRIM PIECE. Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.....Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the Written Directive, on February 8, 2018, Inspector Corlett conducted a Compliance Inspection at the Complainant’s home. Inspector Corlett’s job site inspection notes for the Compliance Inspection reports:

Complaint Item 1: Backsplash in kitchen (never installed). Investigator’s Observation: The Written Directive issued 01/09/18 required the Respondent to properly install the contracted backsplash prior to 01-26-18. Complainant did not comply. On or about 02/03/18 the backsplash was completed by the Complainant (by others). Work has been completed by others [emphasis added].

Complaint Item 4: Pocket door in guest bath does not track properly. (makes noise). Investigator’s Observation: Door problems have not been corrected. [Emphasis added].

The Registrar issued a Citation against Degre, charging possible violations of 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) and possible violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply)

A hearing was held on April 11, 2018.

Investigator Corlett testified consistent with his formal inspection findings, the CWO and his job site inspection notes for the Compliance Inspection [See ¶ 4 and ¶ 5 hereinabove]. It was noted in testimony that the only issue that remained was the installation of the pocket door noted in the CWO. The door still made noise on opening and closing. He said the installation was typical, that the pocket door hardware was not “top-of-the-line” and the casters installed for the door were not the “silent caster” type. The noise that was apparent at the initial and compliance inspection was the only issue apparent with the door. All other issues contained in the CWO were in compliance.

At a March 28, 2018 Pre-hearing inspection, though, Mr. Corlett testified that the pocket door’s noise sounded with a scraping noise – which noise was different in nature than the noise heard at the earlier inspections. Mr. Corlett noted in his testimony regarding the pre-hearing inspection that as the Complainant demonstrated to him the noise in the pocket door, the Complainant opened and closed the door back and forth very rapidly – such that the door would make more noise than would be expected with normal operation. Mr. Corlett stated that at the initial and first compliance inspection he was of the opinion that the noise being heard was emanating from the plastic door glide. The plastic door glide was the issue to be repaired ordered by the CWO. Mr. Corlett testified that he did not use a flashlight to inspect the interior of the pocket door’s frame or other structures at the previous two inspections. At the first inspections, he said, it was the plastic glide for the door that was the noise maker.

However, at the pre-hearing inspection Mr. Corlett stated that he now believes that the current [and different] noise is caused by a broken interior slat scraping on the door. At the initial inspections some two months earlier, Mr. Corlett testified he does not believe he heard noise from a broken slat. Instead, he heard noise from the door’s plastic glide. The broken slat issue is a new matter not reported or discovered until days before the hearing in this case nor is the broken slat issue a matter contained in the CWO

The Complainant testified that the pocket door was never right and that Degre never addressed it. He admits, though, on cross-examination that the door is fixed now.

Degre called Jan Noel to testify in its Case-in-Chief. Mr. Noel is the Account Service Manager for Degre. He stated that the CWO in this case was received by Degre on January 9, 2018. Beginning January 12, 2018, Degre began its efforts to schedule the CWO repairs.

For several weeks prior to the filing of the Complaint in this matter, Degre made efforts to have Complainant to select a source for the backsplash replacement tile in order to confirm availability, pricing and scheduling. The Complaint would not respond to Degre’s effort to determine the precise tile product for the backsplash, and therefore was not able to determine the charges, purchase the material or install the material. On December 22, 2017, Complainant informed Degre that Complainant had already taken steps to proceed with another tile company to perform the sink backsplash work.

On January 24, 2018 Respondent was notified by Rug Hut that they were granted access on January 23, 2018 by Complainant to measure the backsplash area and complete an onsite estimate. On January 26, 2018, Complainant told Mr. Noel that he wanted a different tile supplier to provide a higher bid so that he can get “more money from the insurance company.” Mr. Noel explained to Complainant that the insurance company is likely only obligated to replace “comparable design and materials as to what was originally installed”. Complainant insisted that Respondent find a tile supplier with a “higher bid”. Respondent was unable to approve request for “higher bid.” Rug Hut installed the sink backsplash.

Listed in Degre’s Answer in this case and testified to in detail at the hearing was credible evidence, which is not contested, that on at least 20 occasions Degre made telephone contact with the Complainant to schedule their door installer to repair the offending pocket door before the CWO’s deadline ran out. The Complainant made numerous appointments with Degre where, when Degre appeared at the site for repair work, they were met with locked door and Complainant failed to show up for his appointment. Degre sent representatives to the Complainant’s house for the specific purpose of repairing the pocket door, but Complainant was either not home or not answering the door. The residence door remained locked and access repeatedly denied. It is not disputed in testimony that the pocket door has been repaired. But, repair to the door occurred after the CWO’s January 26, 2018 deadline.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website April 11, 2018. Such prior License record is mitigating.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The credible evidence presented at the hearing established that at the time of the Complaint there were four items of Complainant’s project that needed to be repaired. As to the issue of poor workmanship, the evidence established a pocket-door had been installed such that the pocket-door glide was causing the door to make a scraping noise. Therefore, Complainant did establish that Degre did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

Complainant’s repeated and unexplained refusal to cooperate with Degre to select a source for the backsplash replacement tile [CWO item 1] in order to confirm availability, pricing and scheduling is a denial of reasonable access to the site preventing Degre’s timely compliance with item number 2 of the CWO. Complainant’s refusal to cooperate and denial of access is a valid justification for Degre’s inability to repair the sink backsplash before the CWO’s January 28, 2018 deadline.

Complainant’s repeated and unexplained refusal to cooperate with Degre to permit it to gain access to the Complainant’s home to perform the CWO’s ordered repair to the pocket door is a valid justification for Degre’s inability to repair the pocket door before the CWO’s January 28, 2018 deadline.

By a preponderance of the evidence, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22).

In light of the relatively minor workmanship issues presented, Degre’s good faith efforts to repair the four items listed in the CWO in spite of the Complainant’s lack of cooperation and denial of access, all of the items listed in the CWO, it is not contested that all of the CWO items are now repaired satisfactorily. These factors being considered and in light of Degre’s otherwise clean record with the Registrar of Contractors, it is not appropriate to issue an Order requiring Degre to make appropriate corrections, nor is it appropriate to suspend or revoke Degre’s license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Steven J Hellem.

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, April 27, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors