ALJDEC decisions subject to certification as final

2018A-1468-CHC-ROC · Registrar of Contractors · 2018-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Peter Bergsagel and Marta Chesi

COMPLAINANT,

v.

Trenz Group LLC,

License No: 237722

RESPONDENT.

No. 2018A-1468-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 27, 2018.

APPEARANCES: Peter Bergsagel, MD and Marta Chesi, PhD., Complainants;

Sophie Thompson, Respondent; Steve Lawton, Registrar Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson.

_____________________________________________________________________

FINDINGS OF FACT

Trenz Group LLC, Respondent. (“Trenz”) is the holder of license number. 237722 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 17, 2017, Peter Bergsagel and Marta Chesi (“Complainants”) entered into a contract with Trenz to, among other things, to renovate the Complainants’ Master Bath, closets and children’s Bath using imported wardrobe cabinets made to order and imported from an Italian cabinetry maker. There are no written change orders.

3. On or about March 30, 2018, The Registrar received a Complaint against Trenz from Complainants alleging that Trenz performed below workmanship standard work and had abandoned work on the contract.

4. The Registrar assigned the Complaint to Registrar Investigator Steve Lawton. After notice to the parties, Mr. Lawton conducted a Job Site Inspection (“JSI”) at the Complainants’ residence located at 11847 North 129th Way in Scottsdale, Arizona. The Complainants were present. ; The Respondent did not appear for the JSI.

In Mr. Lawton’s JSI Notes he relates:

Complaint Item 3: Bathroom tiling and edges, grouting and sealing: unacceptable. Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3)

Complaint Item 4: Mudding, drywall finishing and painting unacceptable. Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3);

Complaint Item 7: Speaker volume control discarded and new volume control and wiring not installed. Investigator’s Observation: Substantiated Governing Rule: N/A: ARS 32-1154 (A) (1, 3);

Complaint Item 10: Bathroom and wardrobe cabinets delivered but not installed. Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3);

Complaint Item 11: Sinks, faucets, counter tops and fifth mirror received but not installed. Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3);

Complaint Item 13: Electrical outlets under vanities not installed.

Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3);

Complaint Item 17: Kitchen pass through window not delivered or installed. Investigator’s Observation: Substantiated. Governing Rule: Workmanship Rule: ARS 32-1154 (A) (1, 3).

On May 16, 2018, Investigator Lawton issued a Written Directive containing a Corrective Work Order (“CWO”) to Trenz that 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 notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 06/01/2018.

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

Complete project as agreed to by both parties and by workmanship, industry and manufacturers’ standards.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. The 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 CWO, Inspector Lawton received an e-mail on May 29, 2018 from Trenz requesting a 14 to 21 day deadline extension to comply with the CWO. Mr. Lawton conferred with the Complainants who advised that they objected to a grant of an extension of the original deadline for compliance. The CWO required Trenz compliance on or before June 1, 2018. Complainants advised Mr. Lawton that Trenz did not comply with the CWO by the deadline date for compliance.

On June 5, 2018, the Registrar issued a Citation against Trenz charging possible violations of

Charge 1: A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”).

Charge 2: 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 3: A violation of A.R.S. § 32-1154(A)(8) (“Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”); and,

Charge 4: A violation of A.R.S. § 32-1154(A)(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 Registrar referred this case to the Office of Admistrtive Hearing, and independent agency, for a hearing to determine the merits of the Registrar’s Citation and Complainants’ Complaint. A hearing was conducted on August 27, 2018.

At hearing, Investigator Lawton testified consistently with his JSI Notes that Seven (7) items of poor workmanship were noted and a Directive was issued to Trenz.

Complainant Bergasagel testified that the work contracted for with the Trenz still remains incomplete. After the custom bathroom and closet Italian cabinets were delivered to his garage, these remained there since Trenz never came back to install them. The last day Trenz worked on this project, he said, was March 16, 2018. He said, the contract was signed in May 2017, with the plan for the work to start in June and finish in August. The demolition started on time, but almost all of the work stopped in July 2017, leaving us since that time without closets, unfinished bathrooms without vanities, and temporary sinks and fixtures. He testified that Trenz had been paid $105,000.00 Trenz demanded an addition payment above and beyond the contract price of $27,350.00 “to finish your project.” He said, the bathroom remodel and new closets contracted for are unfinished and remain so today, a year and four months after the contract.

Appearing for Trenz was Sophie La Voie Thompson, a member of the Respondent’s LLC. She stated that there were efforts made to bring work that was performed by Trenz’ sub-contractor up to workmanship standards. She advised that Trenz is dormant and is no longer doing business. Ms. Thompson directs blame for the work done and the failure to comply with the Directive’s Corrective Work Order on Trenz’ sub-contractor, a person she identified as Steve Aussi. Trenz was unable to get the sub-contractor to return to the job site for work and she advised that other contractors would not contract with her on this job because no one would agree to repair the work that had already been done poorly on the project. “We did the best we could do at the time”, she said. She admitted that “The work was poor and unacceptable... and Steven Aussie would not re-do his work.” Ms. Thompson estimates that the work on the project stopped, before completion, somewhere between August to September, 2017, but she said she was not certain on the dates. Ms. Thompson agreed that Trenz warrants the work done by its sub-contractors.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 21, 2018. Such prior License record reflects that Respondent’s License No. 237722 was first issued on September 16, 2007. The license was twice suspended for lack of bond and on September 13, 2017 the license was inactivated. On October 1, 2017 the license was suspended for non-renewal.

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 hearing established that at the time of the Complaint and at the time of hearing there were items of Complainant’s project that needed to be completed. Specifically, the bathrooms’ and custom wardrobe closet cabinets have never been installed, none of the sub-standard workmanship items indicated on the CWO have been remedied. By a preponderance, Trenz abandoned proved by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).

As to the issue of poor workmanship, the evidence established seven items of poor workmanship. Therefore, Complainant established, by a preponderance, that Trenz did not perform 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).

By a preponderance of the evidence, Trenz did violate A.R.S. § 32-1154(A)(8) by its failure in a material respect to complete Complainants’ construction project for the price stated in the contract, or in any modification of the contract.

By a preponderance of the evidence, Complainants established that failed to respond to or comply with the CWO by the deadline set. Complainants have proven, by a preponderance, that Trenz violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Trenz Group LLC, License No: 237722.

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, September 12, 2018.

/s/Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar o96