FINACT2018A-04334-ROC.pdf

2018A-04334-ROC · Registrar of Contractors · 2019-04-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Kelly Patrick O'Shaughnessy, Case No. 2018-04334 COMPLAINANT, Docket No. 2018A-04334-ROC v. Daville Development LLC , FINAL ADMINISTRATIVE DECISION DBA: West Hill Construction, AND ORDER License No. ROC 203017 RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on May 20, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTES On page 1, line 20 replace “January 7, 2019, 2016” with “January 25, 2019.” On page 2, line 5 replace “Jojuba Way” with “Jojoba Way.” Dated April 10, 2019. Registrar of Contractors

/s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Copy mailed via USPS First Class mail April 10, 2019 to: Respondent Daville Development LLC DBA: West Hill Construction 67 S Higley Rd Ste 103-210 Gilbert, AZ 85296 Complainant Kelly Patrick O'Shaughnessy 3685 S Jojoba Way Chandler, AZ 85248

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge

Case No. 2018-04334 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received Legal 4.1.19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly Patrick O'Shaughnessy, No. 2018A-04334-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

Daville Development LLC, DBA: West Hill Construction ROC License: ROC 203017 RESPONDENT

HEARING: March 18, 2019

APPEARANCES: Kelly Patrick O’Shaughnessy, Complainant, Rachelle

O’Shaughnessy, Complainant’s spouse, Joanna Gick, Interior Design

Consultant, Complainant witness, Ryan Hill, Respondent, Jack Grimm, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. On January 7, 2019, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 18, 2019, at the Office of Administrative Hearings in Phoenix, Arizona.1 2. Respondent Daville Development LLC, d/b/a: West Hill Construction [hereinafter “Daville”] holds license number ROC 203017 issued by the ROC. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, ROC alleges that Daville may have violated Ariz. Rev. Stat. § 32-1154(A)(2); § 32-1154(A) (3) and § 32-1154(A)(22). The Citation shows

Administrative Judicial Notice is taken of the entirety of the Registrar’s electronic and physical files in this

case, including but not limited to, the Registrar’s public access website. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received Legal 4.1.19

that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Daville’s license.2 5. Complainant Kelly Patrick O’Shaughnessy [hereinafter, “O’Shaughnessy”] entered an agreement with Daville in which Daville agreed to provide remodeling contractor services at the O’Shaughnessy residence located at 3685 South Jojuba Way in Chandler, Arizona. O’Shaughnessy paid Daville the sum of $32,316.50 for its services. There is no written contract. 6. On September 12, 2018, O’Shaughnessy filed a Complaint with ROC alleging poor workmanship, failure to obtain a permit as required and other deficiencies on Daville’s part. 7. In response to O’Shaughnessy’s Complaint, ROC Investigator Jack Grimm conducted a Job-Site Inspection [“JSI”] on October 26, 2018. Mr. Grimm observed Daville’s work on the O’Shaughnessy property and recorded his findings as follows:3 Jobsite General Notes:

Structure work and electrical and plumbing was performed on this project and would require a permit from the governing authority. One was not in place. Contractor will be required to obtain a permit and meet all necessary inspection requirements and obtain a final inspection.

Complaint Item #1: Substandard / Shoddy work. Doesn’t show up to finish job. Bathroom remodel started in April and now end of August. Investigators Observation: Vanity is incomplete. Homeowners state the top was installed and was not the granite or stone that they picked out and has been removed. They state it appeared to have been made out of scrap pieces. A small portion of the top material is still in place at the tub deck. Spout and handles are installed poorly as the spout runs right of the tub overflow. New windows over the tub area are new, exterior finish appears incomplete. Interior of the upper vanity drawer has many holes drilled into it that appear unnecessary and needs to be corrected. Pocket door to toilet area is installed poorly as the door is not correct in the pocket of the wall. It is out of center and goes into the wall too far. Latch is poorly installed. Base is missing in the master bathroom closet. Large mirror is missing the agreed upon trim. Governing Rule: 4-9-108(A)(B) Poor work, incomplete work and unpermitted work.

2 The CITATION shows that ROC could not determine whether any violations had actually occurred, which

is why the matter was set for hearing. Job Site Inspection Notes, Agency Record, page 33.

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Complaint Item #2: Was only to remove 4 doors that needed to be repainted. One door was to be white, it was installed black. Investigators Observation: Doors in the master bathroom area are painted black and the finish is inconsistent and needs to be corrected. White double doors going into the master bathroom have some inconstancies in the paint that need to be corrected. Observed some inconsistencies with caulk and paint at the base area of the master bathroom that need to be addressed. Governing Rule: 4-9-108(A) poor work. Complaint Item #3: Staircase project still not completed. Investigators Observation: Knee walls and hand rails of the stairs going to the upstairs where removed and replaced with wrought iron. The iron part looks good but the drywall work at the short walls above the floor and below the iron are inconsistent and the curves are wavy. The homeowners also state that the finish work going up the stairs is not at all what was agreed upon. Projections that have been installed are inconsistent and does not match the projection at the base of the rail in the other locations. Projections away from the wall in several locations varies and is inconsistent at the stairs. This work at the stairs regarding the handrail and treads and risers all would require permit to verify that the handrail and the risers and treads meet code requirements. All the floor coverings on the stairs have also been replaced and do not appear to meet code requirements. Base is incomplete at base of stairs. Governing Rule: 4-9- 108(A) Poor work.

Complaint Item #4: Workers leaned stuff against exterior of house. Still not painted. Investigators Observation: Issue has been resolved by the homeowner. Governing Rule: N/A

Complaint Item #5: Electrical outlets still not working. Investigators Observation: Homeowners stated they will have the electric looked at and have it corrected. There still are some outstanding issues of incomplete covers and covers that do not match that need to be corrected. Governing Rule: 4-9-108(A) poor work Complaint Item #6: Drywall work poor. Investigators Observation: Observed locations in the master bathroom of poor texture in several locations. Also observed radius and curves of the stairs and short walls under the iron work that is poor and inconsistent. Governing Rule: 4-9-108(A) Poor work

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8. Mr. Grimm issued Daville a Directive4 with a Corrective Work Order [“CWO”] dated November 15, 2018. Through the Directive, ROC ordered Daville 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 the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 December 4, 2018. [emphasis in the original].

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

Obtain permit from the appropriate building authority and comply with all requirements per any inspection report and obtain a final inspection approval. Complaint item #1: Complete master bedroom re-model per contract including but not limited to installing the correct stone tops (per selected agreement) at vanity and the deck at the rear of the tub. Correct tub spout and handles to correct location on the new top so the water does not run into the upper tub drain. Complete new windows installed over the tub for fit and finish on the inside and outside. Correct interior of upper vanity drawer that has several excess holes drilled into front of drawer box. Correct pocket door and latch to the toilet area for correct adjustment and fit and correct any damaged finish. Complete base in master closet. Complete mirror trim per agreement. Complaint item #2: Correct inconsistencies of paint finish on double white doors entering the master bathroom and all black doors in the bathroom. Correct inconsistencies of caulk and paint at base in the master bathroom.

Agency Record, Page 25.

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curved stair face that is inconsistent and varies in sizes and projection distance from the wall. Complaint item #5: Correct all issues of electrical work that have been effect by the unpermitted work and receive clearance from a building official. Complete all affected switches, outlets and trims so all colors match.

Complaint Item #6: Correct locations of poor drywall finish and texture at various locations in master bathroom and repaint.5

9. Mr. Grimm, at hearing, testified that he had determined the items referred to in the CWO constituted a violation of the “workmanship” standards. (see A.A.C. R4- 9-108). Mr. Grimm stated that the City of Chandler Code required this construction to be permitted and pass permit inspection. He stated that contrary to the requirements of Ariz. Rev. Stat. § 32-1154(A)(2), Daville proceeded to demo and build on this project without having first obtained a City of Chandler permit. It was Mr. Grimm’s opinion that the failure to obtain the proper permitting before proceeding to engage in this

construction project is, in and of itself, a violation of workmanship standards.

10. On December 18, 20186, Mr. Grimm conducted a Compliance Inspection

at which time he determined:

Compliance Jobsite General Notes: No representative for the contractor was on site for the inspection.

Compliance Findings:

Obtain permit from the appropriate building authority and comply with all requirements per any inspection report and obtain a final inspection approval. INCOMPLETE: No permit has been obtained. Complaint item #1: Complete master bedroom re-model per contract including but not limited to installing the correct stone tops (per selected agreement) at vanity and the deck at the rear of the tub. Correct tub spout and handles to correct location on the new Mr. Grimm, on October 26, 2018 [see,Jobsite notes #2, Agency Record, page 28] states: “Making some additions regarding the electrical due to an added doc by the homeowner regarding the issues in the home due to an inspection by an electrician. Electrical issues Investigator’s Observation: Per document from the homeowner I will add the correction of the electrical issues. Governing Rule: 4-9-108(A) Poor work It is noted that the Compliance Inspection was conducted 14 days after the deadline ordered in the CWO. Received Legal 4.1.19

top so the water does not run into the upper tub drain. Complete new windows installed over the tub for fit and finish on the inside and outside. Correct interior of upper vanity drawer that has several excess holes drilled into front of drawer box. Correct pocket door and latch to the toilet area for correct adjustment and fit and correct any damaged finish. Complete base in master closet. Complete mirror trim per agreement.

INCOMPLETE: New tops have been installed and paid for by the homeowners (Contractor did not complete this item). Tub has been turned to correct spout issue but it now is missing parts to cover 2 access locations. Pocket door hardware has been adjusted but poorly and the door is not adjusted correctly. Pocket door hardware is damaging jam when in operation. Base at master closet is installed but the finish has not been completed. No mirror trim is in place.

Complaint item #2: Correct inconsistencies of paint finish on double white doors entering the master bathroom and all black doors in the bathroom. Correct inconsistencies of caulk and paint at base in the master bathroom.

INCOMPLETE: Black closet doors have been removed from the home by the contractor and are not on site. White doors still have some inconsistencies regarding the white finish.

Complaint Item #3: Correct wavy and inconstant curves of the drywall at short walls under the iron rails at stairs and upstairs walkways. Correct inconsistencies of the projection distance out from wall for uniformity. Correct locations at living room side of curved staircase that is inconsistent and varies in sizes and projection distance from the wall. INCOMPLETE: This work is incomplete. Complaint item #5: Correct all issues of electrical work that have been effect by the unpermitted work and receive clearance from a building official. Complete all affected switches, outlets and trims so all colors match.

INCOMPLETE: Electrical work is corrected, however the work has not been inspected and approved by a city building official.

Complaint item #6: Correct locations of poor drywall finish and texture at various locations in master bathroom and repaint. COMPLETED. Received Legal 4.1.19

Consequently, the ROC issued the Citation in this case.

11. Mr. and Mrs. O’Shaughnessy and the O’Shaughnessy’s interior designer, Joanna Gick, testified at hearing that a large granite slab was selected by on-site from Arizona Tile for fabrication and them installation. The slab that was in fact installed showed a large fissure crack, burn marks, divots and other imperfections. The slab that was selected and placed on hold by Arizona Tile had no defects or imperfections. Daville and O’Shaughnessy advised at hearing that they had resolved the issue whereby Daville would fully reimburse O’Shaughnessy for the value paid for the granite piece at that rate of $400.00 per month.7 At hearing, Mr. Ryan Hill, Qualifying Party for Daville, testified in explanation that he had hired a sub-contractor to fabricate and install the granite slab. He agreed that the installed granite looked below grade with multiple imperfections. When he agreed to pay O’Shaughnessy monthly for the replacement value of the poor quality slab, O’Shaughnessy went back to Arizona Tile to select another slab. It was then that O’Shaughnessy and Gick testified that Arizona Tile advised that the original slab selected, paid for and set aside for pick-up by Daville was

never picked-up and was still on-site. Mr. Hill stated at hearing that the sub-contractor

he hired was not a licensed contractor. Mr. Hill maintained he did not know the sub-

contractor was unlicensed. Mr. Hill surmised at hearing that the sub-contractor must

have installed granite pieces the sub gathered from other jobs and used them in the

O’Shaughnessy project.

12. Testimony of both Mr. Hill, Mr. Grimm and Mrs. O’Shaughnessy showed

that a permit was eventually obtained for this project, but not before the CWO’s

deadline. Moreover, it was admitted by Mr. Hill, Mr. Grimm and Mrs. O’Shaughnessy

that a number of the items listed in the CWO were complied with prior to the CWO’s

deadline, but that items 1,2,3,4 and 5 of the CWO were not completed by the CWO’s

deadline but that item 6 of the CWO was completed prior to the deadline of the CWO.

The parties agreed on the record that Daville has been faithfully honoring the payment agreement and is ahead on its payments to O’Shaughnessy. Received Legal 4.1.19

CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41- 1092.07(G)(3). 4. A preponderance of the evidence is: The 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.

BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** Received Legal 4.1.19

3. Violation of any rule adopted by the registrar. ***** 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.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars upon a contractor for each violation of

ARIZ. REV. STAT. section 32-1154(A)(22).

11. The preponderance of the evidence shows that Daville violated Ariz. Rev.

Stat. §32-1154(A)(2) by failing to obtain a City of Chandler permit approval contrary to

the Chandler City Code.

12. The preponderance of the evidence shows that Daville violated Ariz. Rev.

Stat. §32-1154(A)(3) by failing to perform its work in a professional manner.

13. The preponderance of the evidence shows that Daville violated Ariz. Rev.

Stat. §32--1154(A)(22) by failing to comply with the Directive and CWO within a

reasonable time without reasonable justification for its failure to timely comply.

14. Considering the nature and number of the workmanship violations,

Daville’s license should be suspended. 15. Considering that Daville acknowledged that it did not fully comply with the Directive and provided no reasonable explanation for that failure, the imposition of a $500.00 civil penalty is appropriate.

… …

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RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter Daville Development LLC, DBA: West Hill Construction, ROC License: ROC 203017 should be suspended for three (3) days. IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Daville Development LLC, DBA: West Hill Construction ROC License: ROC 203017 be ordered to pay a civil penalty to the Registrar of Contractors in certified funds of $500.00. 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding 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 is forty days after the date of that certification. Done this day, March 28, 2019. /s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors