ALJDEC decisions subject to certification as final
2017A-973-CHC-ROC · Registrar of Contractors · 2017-08-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kimberly Martin,
COMPLAINANT,
v.
Able & Ready Construction, LLC,
License No: 286905
RESPONDENT.
No. 2017A-973-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 24, 2017
APPEARANCES: Complainant Kimberly Martin appeared on behalf of herself. Chris Harman appeared on behalf of Respondent Able & Ready Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
1. In May of 2016, Complainant Kimberly Martin (“Ms. Martin”) and Respondent Able & Ready Construction, LLC (“Able & Ready”) entered into a residential reconstruction contract.
2. Christopher Turcott Hartman is a member of Able & Ready.
3. In June of 2016, Able & Ready performed reconstruction work at Ms. Martin’s home, including tile installation.
4. On or about February 21, 2017, Ms. Martin filed a Complaint with the Registrar of Contractors (“Registrar”) alleging poor workmanship on the part of Able & Ready.
5. On March 28, 2017, Registrar Investigator Jim Dimond conducted a job site investigation.
6. On April 19, 2017, Investigator Dimond issued a written Directive. The April 19, 2017 Directive provides, in relevant part, as follows:
Item 1- Uneven tile job-some tiles slope & some tripable, other problems. Insufficient grout on tiles.
The majority of this floor has excessive lippage, dips and humps and the respondent is to correct the condition in an appropriate manner.
Item 5- Smoke damage on windows.
The respondent is to correct the condition in an appropriate manner.
Item 22- Microwave shelf isn’t wide enough for microwave
No shelf is present. The respondent is to correct the condition in an appropriate manner.
Item 25- There are drywall seams cracking and lines showing.
The respondent is to correct the condition in an appropriate manner, including the slanted sill at the West window.
Item 27- Kitchen sink was leaking.
Sink leaks at the left rim. The respondent is to correct the condition in an appropriate manner.
7. Through the Directive, the Registrar ordered Ready & Able to remedy the alleged violations by May 5, 2017.
8. On May 12, 2017, Investigator Dimond conducted a compliance inspection. Investigator Dimond concluded that Able & Ready failed to appropriately correct the uneven tile and smoke damage to the windows. Investigator Dimond’s inspection notes provide, in relevant part, as follows:
Item 1 – The tile – The tile has areas of lippage, misaligned grout joints and the depressed area at the kitchen cabinets still remains. This item is not in compliance.
Item 2 – Smoke damage- The windows appear cleaner but still have smoke damage. It may be a permanent condition. The Complainant did wipe a groove with a Kleenex and there was a dark substance but I cannot determine if it was soot or not. This item is not in compliance.
9. On May 15, 2017, the Registrar issued a Citation for an alleged violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3); and Ariz. Rev. Stat. section 32-1154(A)(22).
10. Able & Ready filed a timely written answer to the Citation.
11. On June 9, 2017, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 24, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
12. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
13. At hearing, Christopher Turcott Hartman that Able & Ready received the Directive on April 24, 2017. Mr. Hartman testified that on April 24, 2017, Able & Ready sent an electronic mail message to Ms. Martin scheduling corrective work for May 1, 2017. See Exhibit L.
14. Able & Ready contended that it did not repair all of the items listed in the Directive because Ms. Martin denied Able & Ready access to her property. Able & Ready argued that Ms. Martin denied access to her property several times before the Directive was issued. Able & Ready also contended that Ms. Martin denied access to one its workers, Scott McFarland, on May 1, 2017.
15. Ms. Martin testified that she never denied access Able & Ready access to her property during the time period for compliance with the Directive. Ms. Martin testified that Investigator Dimond explained to her that she needed to give the contractor the opportunity to correct its work.
16. Ms. Martin testified that she did not deny Scott McFarland access to her property on May 1, 2017. Ms. Martin testified that on May 1, 2017, she called Able & Ready at approximately 7:30 a.m. and explained that she needed a little more time to move the big television out of her living room. Ms. Martin testified that she was told that Mr. McFarland would wait outside until she was ready. Ms. Martin testified that when Mr. McFarland arrived, she explained that she needed a few more minutes because she did not know where she would move her television. Ms. Martin stated that Mr. McFarland gave her an old shelf. Ms. Martin stated that Mr. McFarland returned to his car to wait for her. Ms. Martin stated that she opened the door five minutes later and noticed that Mr. McFarland left. Ms. Martin stated that Ms. Walters told her that Mr. McFarland would not come back to her home because she denied him access. Ms. Martin stated that she informed Ms. Walters that she did not deny access to Mr. McFarland and wanted him to return that day to start the repairs.
17. I find Ms. Martin’s testimony to be credible.
18. Tina Walters, an employee of Able & Ready, testified that she schedules work for Able & Ready. Ms. Walters testified that Scott McFarland told her that on May 1, 2017, Ms. Martin denied him access to her property. Ms. Walters testified that a tile installer was scheduled to come to Ms. Martin’s home the same day. However, Ms. Walters testified that she did not send the tile installer to Ms. Martin’s home because Ms. Martin denied access to Mr. McFarland. Ms. Walters testified that on May 2, 2017, Able & Ready’s tile installer came to Ms. Martin’s home and performed work. Ms. Walters stated that on May 4, 2017, a dry waller from Able & Ready came to Ms. Martin’s work and performed work. Ms. Walters testified that Able & Ready completed the repairs on May 5, 2017.
19. Administrative notice is taken of Respondent’s prior License record on August 14, 2017. Such prior License record reflects that Respondent’s License No. 286905 was first issued on November 26, 2013, and is current. Such prior License record also reflects that there was one open complaint and one complaint was resolved/settled/withdrawn.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat. section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.
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).
A preponderance of the evidence shows that the work by Able & Ready was not in compliance with the Registrar’s workmanship standards. Therefore, Ms. Martin established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
A preponderance of the evidence shows that Able & Ready violated Ariz.
Rev. Stat. section 32-1154(A)(22) by failing to comply with Registrar’s Directive without valid justification.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 286905 of Respondent Able & Ready Construction, LLC shall be suspended for a period of three calendar days.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 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 Ariz. Rev. Stat. section 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, August 14, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors