ALJDEC decisions subject to certification as final

2017A-796-CHC-ROC · Registrar of Contractors · 2017-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ernestine S Ruiz,

COMPLAINANT,

v.

Hansen Brothers Incorporated,

License Nos: 177301, 106084, 113051,

RESPONDENT.

No. 2017A-796-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 19, 2017

APPEARANCES: Ernestine S. Ruiz (Complainant) appeared on her own behalf. Hansen Brothers Incorporated (Respondent) was represented by James Hansen, its qualifying party and authorized representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 468 Duane Street, Benson, Arizona 85602.

Respondent holds Arizona Contractor’s License Nos: 177301, 106084, and 113051. License No: 177301 was suspended for lack of bond as of August 9, 2015 and was not renewed after August 31, 2016. License No: 106084 is current. License No: 113051 is also current.

On February 10, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when remodeling her showing and fixing the back door in her home.

The Registrar assigned investigator Michael Springer to investigate the complaint. Springer testified that he arranged to perform an inspection on March 29, 2017, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Springer indicated that at the time of an inspection, he substantiated three of Complainant’s allegations, specifically that the back door did not open properly, the shower panel was not flush at the bottom and that wood had been used in the shower in violation of the building code.

On April 11, 2017, Springer sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 17, 2017.

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

1. Correct back door where not functioning correctly.

2. Correct shower panel that is not flush to wall at bottom.

3. Correct shower to meet section 307.2 of the IRC. Wood materials not allowed.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

After the time period for compliance with the Directive, Complainant informed Springer that while Respondent had performed some repairs, she still was not satisfied.

On May 4, 2017, Springer performed a compliance inspection. He found that while Respondent had had removed the wood in the shower, the material used was crooked, had nails showing through and was not waterproof, rendering it noncompliant with both code and workmanship standards. Springer also determined that while the shower panel was now flush, it was not attached and thus remained incomplete. He further indicated that the back door sticks in the frame and still failed to close properly. Springer therefore forwarded the matter to the Registrar’s legal department for review.

On May 8, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] 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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Springer testified consistently with the facts detailed above. He said he performed a prehearing inspection on July 18, 2017 and found that the back door was still hard to close and that the shower shelf was still not waterproof.

James Hansen testified that Respondent had undertaken to remodel Complainant’s shower and work on her back door. Hansen said he had been a contractor for forty years and had never experienced something like this. He indicated that Respondent had been back to attempt to fix Complainant’s issues 16 to 17 times in the last 15 months but she still had complaints. Hansen stated that he believed Complainant or one of the other adults living in her house had done something to damage the shower. He said he saw nothing wrong with the back door. Hansen emphasized that in his view Respondent had done and indeed “over done” everything it needed to do to resolve this matter. He stated he just wanted to be done with it.

Complainant testified that Respondent had come out many times claiming it would fix the items in question, but failed to do so. The most recent time was on June 13, 2017 when Respondent’s employee worked on both the door and the shower shelf, but did not finish, promising to come back and caulk, which never occurred.

CONCLUSIONS OF LAW

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. § 32-115.

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).

Undisputed credible testimony established Respondent performed substandard installation of the back door and shower resulting in a back door that failed to open properly, a shower panel was not flush at the bottom and a shower shelf that was not waterproof Thus, Complainant established Respondent’s work on her shower and back door was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure to fix the back door and to waterproof the shower shelf.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. License Nos: 177301, 106084, and113051 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 Registrar’s final order, the Registrar 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 A.R.S. § 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 40 days from the date of that certification.

Done this day, July 20, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors