ALJDEC decisions subject to certification as final
2018A-1532-CHC-ROC · Registrar of Contractors · 2018-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Cheryl Diane Creamer,
COMPLAINANT,
v.
Armstrong Innovations Inc,
License No:
284126
RESPONDENT
No. 2018A-1532-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 23, 2018, 8:30 A.M.
APPEARANCES: Complainant Cheryl Creamer appeared on her own behalf; Ken Armstrong, Owner of Respondent, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Armstrong Innovations, Inc. (Respondent), is the holder of License Number 284126 issued by the Registrar of Contractors (Registrar).
2. On or about April 3, 2018, Cheryl Diane Creamer (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with a bathroom remodel by Respondent at Complainant’s residence in Prescott, Arizona (“project”). The Complaint reflected a contract amount of $6,380.00.
3. The Registrar performed an inspection of the project on April 18, 2018. Thereafter, the Registrar issued a Directive, dated April 18, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 3, 2018, as follows:
Item 1 - Bathroom remodel remains unfinished more than 5 months after it was started.
The respondent is to complete the linen and install transitions from the to the tile in an appropriate manner.
Item 2 - The respondent did not provide a written contract.
ARS 32-1158 requires that projects in excess of $1000 be under a written contract.
The respondent is to provide written contracts that comply with the 9 requirements for projects over $1000. (See attached violation letter)
Item 3 - The email provided by the respondent with the projected work did not contain the respondents ROC number as required.
ARS 32-1124.B requires that licensees display their license number preceded by the ROC acronym.
The respondent is to include his properly displayed license number when providing bids and proposals to customers. (See attached violation letter)
Item 4 - The respondent self-performed plumbing work outside the parameters set forth in the scope of his CR-61 Limited Remodeling Contractor license.
The CR-61 license scope mandates that plumbing work be sub contracted to an appropriately licensed plumber.
Self-performing the plumbing is a violation of ARS 32-1154.A.16. (see attached violation letter).
The respondent is to operate within the scope of his license in an appropriate manner. Any plumbing issues discovered shall be corrected pursuant to italicized, bold and underlined paragraph of this directive.
Item 5 - The respondent failed to obtain or ensure that a required building permit was in place prior to beginning the project in violation of ARS 32-1154.A.(2)
The respondent is to obtain a permit for this project and comply with any requirements made by the city of Prescott.
4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated May 8, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract and violation of A.R.S. § 32-1124(B) for failure to include license number in bid);
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for July 23, 2018, at 8:30 A.M.
6. At the July 23, 2018, hearing, Complainant Cheryl Creamer testified on her own behalf. Respondent presented the testimony of Ken Armstrong, Owner. Jim Dimond, the Registrar Investigator (Investigator), testified on behalf of the Registrar.
7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he had recently contacted the Building Department of the city of Prescott on July 20, 2018, and had been informed that a permit had yet to be applied for. He stated he also contacted Complainant on July 20, 2018, who informed him that no corrective work had been performed.
8. Complainant Cheryl Creamer testified that her only complaint was that the linen closet in the bathroom had not being completed. She stated that she had told Respondent not to worry about the lack of transitions from the tile to the carpet because she would eventually be installing new carpeting. Ms. Creamer further testified that there was no written contract but that the agreement was such that she was to do the demolition and provide most of the materials and Respondent was to provide the labor. This was evidenced by a series of emails between the parties. (Attached to Complaint). She stated that it had always been contemplated by the parties that the linen closet would be part of the remodel and that it would not have made any sense to remodel the entire bathroom and leave a linen closet in the bathroom untouched.
9. Ken Armstrong, Owner of Respondent, testified on behalf of Respondent that he did not believe the linen closet was part of the scope of work or part of the agreement between Respondent and Complainant. He stated that Complainant had agreed to do all of the demolition on her own and provide most of the materials. He testified further that Complainant did all the demolition work with the exception of the linen closet; he stated he therefore assumed she wanted to leave it as is. He further stated that he did not get a permit because he was under the impression that that was the responsibility of the homeowner. He offered no explanation as to why he had since not attempted to obtain a permit.
CONCLUSIONS OF LAW
1. 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. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
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....
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein.
7. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1124(B) requires in pertinent part that:
The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.
8. A.R.S. § 32-1154(A)(2). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or specifications or any building codes. Respondent did not dispute that it proceeded with the project without a building permit in place, regardless of whether it was the obligation of Complainant to obtain one.
9. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). At issue was whether the remodeling of the linen closet in the bathroom was contemplated by the parties to be part of the bathroom remodel. Respondent argued that Complainant was to do the demolition work, and because Complainant did not do anything in that regard with respect to the linen closet, it assumed that the linen closet was to remain intact. Complainant stated that there was no demolition that could be done to the linen closet other than the taking off of the doors. The parties differed on whether the linen closet was discussed before the work began.
10. The Tribunal finds from the evidence presented that the labor to remodel the linen closet was or should have been part of the agreement between the parties. Respondent bid the work before demolition began, so even if Complainant did not demolition the linen closet, Respondent presumably knew before seeing the lack of demolition of the linen closet whether the linen closet was to be part of its scope of work. Further, even if Respondent had a different understanding as to whether the linen closet was to be included in the scope of work, it was Respondent that had the opportunity to avoid any such misunderstanding. First, it was the obligation of Respondent to have had a written contract between the parties which could have outlined the precise scope of work sufficient to alleviate any misunderstandings. Further, Respondent’s bid in its emails which included tasks to be completed did not include any itemization of costs which could have apprised Complainant whether the linen closet was to be part of the project. Although the emails between the parties do not mention the linen closet at all, Complainant testified that Respondent performed other work related to the remodel that also was not specifically referenced in the emails. Complainant’s further testimony is credible that she would not have requested a bathroom remodel that included everything but the linen closet. Accordingly, The Tribunal finds that Respondent’s failure to complete the linen closet using materials that Complainant would have supplied or paid for constitutes work by Respondent not performed in a professional and workmanlike manner.
11. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract and with A.R.S. § 32-1124(B) for the failure to include the ROC license number in the bid. The evidence was uncontradicted that Complainant paid Respondent $6,800.00 for the project and that there was no written contract for the work. Further, in the email proposals sent from Respondent to Complainant, Respondent failed to reference Respondent’s ROC license number.
12. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. The evidence was uncontradicted that Respondent made no effort to proceed with corrective work once the Directive was issued.
13. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Armstrong Innovations, Inc.’s, License Number 284126 is suspended for three days.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, August 13, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Jeffrey Fleetham, Director
Registrar of Contractors