ALJDEC decisions subject to certification as final

2018A-05843-ROC · Registrar of Contractors · 2019-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2019 APPEARANCES: Edward Bonaski, Complainant, Robert Bonaski, Complainant witness, Robert Garcia, Q/P Respondent, Lisa Garcia, witness for Respondent, Steve Kline, ROC Inspector. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq. _____________________________________________________________________ FINDINGS OF FACT On March 21, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on May 16, 2019, at the Office of Administrative Hearings in Phoenix, Arizona.[1] Respondent, Skill Set, Inc., d/b/a: Skill Set Remodeling [hereinafter “Skill], holds license numbers ROC 297060 and 323036, issued by the ROC. On December 10, 2018, Edward Bonaski (hereinafter, “Bonaski”) filed a written Complaint with the ROC alleging numerous items of poor workmanship and abandonment. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. Through the Citation, ROC alleges that Skill may have violated A.R.S. §§ 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Skill’s license.[2] Skill entered an agreement with Bonaski in which Skill was to provide remodeling services at a home owned by Bonaski.[3] These services included furnishing and installing doors, remodel several bathrooms, flooring, electrical, install can lights and remodel kitchen with appliances.[4]. On February 28, 2019, Bonaski filed a Complaint with ROC alleging workmanship and abandonment by Skill. In response to Bonaski’s Complaint, ROC Investigator Steve Klein conducted a formal Job-Site Inspection [“JSI”] on February 5, 2019.[5] Then Inspector Klein issued Skill a Written Directive dated February 5, 2019. At the JSI, Mr. Klein determined that there were numerous items observed that failure to meet industry standards for workmanship. These identified items were reported in Mr. Klein’s JSI notes. He concluded that Skills work, or lack of work, constituted a violation of the “workmanship” standard[6] On February 6, 2019, Inspector. Klein issued Skill a Written Directive which provided 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 February 25, 2019. [emphasis in the original]. You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: 7 new interior doors not installed correctly not plum" wrong cut/paint. Verified several doors need adjustment.

Complaint Item 3: New Saltillo tile installed. Sealant application peeling/blistering, yellowing. Verified some kind of tape mark and an area in the m/bath that appears to be blistering or peeling.

Complaint Item 4: Shelving in master bedroom not secured to wall Shelving is uneven and Respondent agreed to correct.

Complaint Item 5: HVAC ducts installed (re-routed)- work incomplete, improper installation. The m/bath register is missing. Also it appears a building permit wasn’t purchased. The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

Complaint Item 6: Ducts not blowing air, exposed duct shaft. The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities.

Complaint Item 7: Cracks/gouges in travertine tile. failed to grout travertine/Saltillo in spots. Verified grout is incomplete and Respondent agreed to correct the cracked splash.

Complaint Item 8: 2nd floor bathtub drainpipe re-routed for downstairs bath remodel- resulted in bathtub moved and not seated properly. Popped tiles/grout. The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities.

Complaint Item 9: Wrong fixtures installed in master. Hot/cold reversed Respondent agreed to correct.

Complaint Item 11: Painting/stone cutting was done in courtyard, entire area discolored. Respondent agreed to correct.

Complaint Item 12: Paint overspray left on house exterior. Stucco damage. Verified touch up is needed on exterior pony wall.

Complaint Item 13: Kitchen remodel work incomplete. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.

At the hearing, Inspector Klein testified that in the listed items of the Written Directive, each is a violation of the workmanship standard. Through the Directive, ROC ordered Skill to remedy by appropriate means and to notify the Registrar of Skill’s compliance with the Directive on or before 5:00 p.m. on February 25, 2019. On Feb 25, 2019 at 5:25 PM Mr. Bonaski e-mailed Inspector Klein that Skill has not appeared at the job site since the JSI and that Skill has not addressed any of the items listed in the Written Directive. Consequently, ROC issued its Citation against Skill’s license on February 28, 2019. On March 13th, 2019, ROC received from Skill its Answer[7] to the Citation and Complaint in which Skill wrote: Upon starting this project Roberta Bonanski has been difficult. We provided them with a written estimate prior to starting project that they agreed to but throughout the contract the Bonanski's (sic) kept trying to “renegotiate" original price saying it was too expensive. It was extremely difficult to find any crews that were willing to stay on this job for the reason that Mrs. Bonanski would follow them and make them redo things over and over again even though they were done to industry standard. We do agree that there are some minor adjustments that need to be made but any sort of work was made very difficult for us to complete.

At hearing, Inspector Klein testified consistently with his JSI Notes regarding the numerous occurrences of work on the job that were below industry workmanship standards. He noted that no work was ever attempted to remodel the kitchen. He believed that this job had been abandoned by Skill. He does recall that Robert Garcia, Q/P for Skill, told Mr. Klein at the JSI that “he was embarrassed by the work that was done. Complainant, Mr. Edward Bonaski testified that there was no separate written contract between the parties. Rather, the scope of work and expected costs were reflected in Estimates provided by Skill for which Bonaski paid. He said that the kitchen portion of the job was never even started. He said Skill demanded an advanced progress payment before it would build out the kitchen. It still remains undone. He confirmed that none of the items in the Written Directive were complied with by Feb 25, 2019 and still are in need of repair. When Bonaski requested an itemization of the payments he had made, he said Skill refused. Then, he said, “They went dark” and abandoned the project on or about August 28, 2018. He said he expected this job to be finished in six to eight weeks. Instead, Skill worked on the project for about four months and then simply walked off the job. Testifying for Skill was its Qualifying Party, Robert Garcia. Mr. Garcia, in his opening statement to the tribunal, Mr. Garcia admitted “I agree to the poor workmanship alleged.” In testimony, he stated “I could not please the customer no matter what I did.” I did not complete the punch list because I was not able to satisfy the customer. I did not have the time to do it.” He later admitted, “I did not manage the project well.” He said, “I feel bad. This is embarrassing. I am ashamed I could not deliver…I don’t know when I lost control of the project….Other than the kitchen, there were other things incomplete when I walked away.” He said “I decided to cut my losses. I reduced by my charges by nearly five thousand dollars which would cover the cost of the kitchen I left undone.” In final argument, Mr. Garcia apologized to Mr. Bonaski. He stated that “The project just got out of my hands…I tried to make the customer happy, but I was not able to satisfy them.” He said, “The items on the Directive are not workmanship problems, they are just simple fixes – like a punch-list. We reduced our billing by Five Thousand to cover undone issues and didn’t make our final draw [request] because the job was not complete.” Lisa Garcia also testified for Skill. She indicated that she handles the billing process for the company. Her testimony consisted of explaining how she arrived at $4,591.27 as the amount the company decided to credit Bonaski to reflect ‘the amount of money for work never performed.” Other than the pending Complaint in the instant case, Skill has never received any other Complaint through the Registrar and has never been disciplined by the Registrar. Skill’s pristine disciplinary record with the ROC is a mitigating factor in determining possible imposition recommendation for discipline in this matter.

CONCLUSIONS OF LAW 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.[8] “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.”[9] “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.”[10] 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). 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."). “Statutes shall be liberally construed to effect their objects and to promote justice.”[11]. 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). A.A.C. R4 9 108(A) provides that “A contractor shall perform all work in a professional manner.” A professional licensed contractor must comply with the workmanship standards, and if it cannot comply with the standards, it must not undertake the job. Evans v. Creative Finishing Services, No. 2016A-1138- ROC (ALJ Decision 7:13–17). · Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations. Evans v. Creative Finishing Services, No. 2016A-1138-ROC (ALJ Decision 7:24–26). 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: ***** 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 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.

A. R. S. § 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22). The preponderance of the evidence shows Skill violated A. R. S. § 32- 1154(A)(3) by failing to perform its work in a professional manner as required by A.A.C. R4-9-108. The preponderance of the evidence shows that Skill violated A. R. S. § 32- 1154(A)(22) by, without valid justification, failing to comply with the Directive within a reasonable period of time after receiving a written directive. . Considering the nature of the workmanship violations, Skill’s license should be suspended. Considering that Skill has acknowledged that it did not comply with the Directive and its stated reason for that failure, the imposition of a $500.00 civil penalty is appropriate. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter Skill Set, Inc., d/b/a Skill Set Remodeling, ROC Licenses ROC 297060, 323036 are suspended for a period of four (4) consecutive weekdays. IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Skill Set, Inc., d/b/a Skill Set Remodeling must pay to the Registrar of Contractors, in certified funds, a civil penalty of $500.00. 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, June 4, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1]Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] Agency Record, pages 49-52. [4] Ibid. [5] Agency Record, “Job Site Inspection Notes,” pages 63-70. [6] Ibid. [7] Agency Record, “Answer,” pages 5 and 6. [8] Ariz. Admin. Code § R2-19-119. [9] Ariz. Rev. Stat. § 41-1092.07(G)(2). [10]Ariz. Rev. Stat. § 41-1092.07(G)(3). [11]Ariz. Rev. Stat. § 1-211(B)

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826