ALJDEC decisions subject to certification as final
2018A-1622-CHC-ROC · Registrar of Contractors · 2018-09-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bridgette Ann Foord,
COMPLAINANT
v.
Modern Builders LLC,
License No. 286742,
RESPONDENT
No. 2018A-1622-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 7, 2018
APPEARANCES: Bridgette Ann Foord on her own behalf; Juan Vega for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On July 30, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 7, 2018 at the Office of Administrative Hearing.
Respondent Modern Builders, LLC, holds license No. 286742 issued by ROC. Juan Carlos Vega Jr. is Modern Builders’ qualifying party and a member of the LLC.
On or about March 15, 2018, Complainant Bridgette Ann Foord hired Modern Builders to do certain work at her house. From January 1 through March 30, 2018 Modern Builders’ license was suspended for non-renewal, and so was suspended when the contract was entered.
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 Modern Builders may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that ROC could not determine whether Modern Builders has actually committed any of the alleged violations, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that Modern Builders has violated any statute or rule.
The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Modern Builders’ license.
Neither party filed a disclosure statement as required by Ariz. Admin. Code section R4-9-118. The Notice of Hearing informs the parties of their obligation to file the disclosure and it shows that instructions and the appropriate forms were attached to that Notice. In addition, on July 31, 2018, the Administrative Law Judge issued a Minute Entry advising the parties of their obligation to file the required disclosures.
Because the parties did not file disclosures, the ALJ limited the presentation of evidence to the testimony of the parties and that of ROC investigator Jack Grimm, but also informed the parties that he would take notice of the administrative record provided by ROC.
On April 9, 2018, ROC received from Ms. Foord a complaint against Modern Builders.
ROC assigned Investigator Jack Grimm to Ms. Foord’s complaint. Mr. Grimm conducted two jobsite inspections and a compliance jobsite inspection.
Mr. Grimm’s first jobsite inspection occurred on May 10, 2018. Mr. Grimm’s jobsite inspection notes are in the administrative record at RCC100 Jobsite Inspection Notes2.rtf.
At about the time of the first inspection, house-painters informed Ms. Foord that there was water along the outside of her house, indicating a leak.
Ms. Foord hired plumbers to determine the source of the leak, which was eventually determined to be coming from a shower valve installed by Modern Builders.
On May 14, 2018, ROC issued to Modern Builders a Directive that required Modern Builders to correct by appropriate means:
Correct issue of wrong color and incorrectly installed master bath shower mixing valve.
Complete hall bathroom tub, tile surround and fixtures per contract.
Replace broken or damaged tile that was purchased by the homeowner.
Complete agreed upon drywall work.
Obtain necessary building permits from the local governing authority. Complete all required inspections.
Rcc014 Corrective Work Order2.rtf (in administrative record).
ROC’s May 14th Directive shows that ROC had determined that any other workmanship violations alleged in Ms. Foord’s complaint were unsubstantiated.
ROC’s May 14th Directive required Modern Builders to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. May 31, 2018.
During his first inspection Mr. Grimm was aware that plumbers were trying to locate the leak, which they suspected was coming from the shower pan. As of Mr. Grimm’s first inspection, the plumbers had not opened the wall and the source of the leak had not been discovered. Neither Mr. Grimm’s jobsite-inspection notes, nor the first Directive make reference to the leak.
Through an email to Mr. Grimm, dated May 22, 2018, Ms. Foord sought to add additional items to her complaint.
Mr. Grimm conducted a second jobsite inspection on May 25, 2018. Mr. Grimm’s jobsite inspection notes for the second inspection are in the administrative record at RCC100 Jobsite Inspection Notes1.rtf.
At the time of the second jobsite inspection plumbers hired by Ms. Foord had discovered that the source of the leak was the shower valve installed by Modern Builders. The leaking valve caused damage to drywall, baseboards, trim work, and cabinetry.
Modern Builders did not obtain the required permit before installing the shower valve and Mr. Grimm’s opinion was that Modern Builders was contracting outside the scope of its license when it installed the valve.
Mr. Grimm observed that it appeared that Ms. Foord was required to hire the plumbers because Modern Builders failed to do so and that Modern Builders needed to accept responsibility for the issues it caused.
On May 31, 2018, ROC issued to Modern Builders a Directive that required Modern Builders to correct by appropriate means:
Correct issue of cracked toilet in the hall bath.
Correct leaking master shower valve.
Correct all damage caused by leaking master shower valve.
Verify all inspections are performed and approved by the governing code enforcement jurisdiction.
Rcc014 Corrective Work Order1.rtf (in administrative record).
ROC’s May 31st Directive shows that ROC had determined that any other workmanship violations alleged in Ms. Foord’s complaint were unsubstantiated.
ROC’s May 31st Directive required Modern Builders to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. June 18, 2018.
The preponderance of the evidence shows that Modern Builder’s did not meet the workmanship standards in that the shower valve it installed leaked causing damage to Ms. Foord’s home, it installed a shower valve upside down, it broke tiles and a toilet, and it did not properly complete the work at the hall bathroom tub, tile surround and fixtures.
On June 28, 2018, Mr. Grimm conducted a compliance jobsite inspection. Mr. Grimm found that all items but Item 2 of the original complaint had been corrected. The evidence at the hearing supports a finding that Modern Builders did not complete all the required repairs, but rather Ms. Foord hired other contractors to do so.
Regarding Item 2, Mr. Grimm wrote:
INCOMPLETE - Tile work for surround at shower in hall bath is p[o]orly done. Exposed cuts located around window opening. No trim or bull nose used or edges polished. Right corner tile goes from small cut pieces to nothing. Observed several locations of tile lippage out from face. Part of this is due to the tile style however it appears excessive in some locations.
Rcc014 Compliance Jobsite Inspection Notes 1.rtf (in administrative record).
On July 3, 2018, ROC issued to Modern Builders the Citation.
At the hearing, Mr. Vega testified that he is unwilling to correct the deficient tile work and that he is not willing to pay another contractor to do so.
ROC’s website shows that Modern Builders’ license was issued on December 16, 2013.
Modern Builders’ license was: suspended for non-renewal from January 1 through 28, 2016; suspended for lack of a bond from September 5 through October 17, 2016; suspended for lack of a bond from September 7 through 19, 2017; and suspended for non-renewal from January 1 through March 30, 2018.
Ms. Foord was of the opinion that she would not qualify for relief from ROC’s residential recovery fund because Modern Builders’ license was suspended when she hired it.
Ms. Foord expressed the disappointment she feels each time she sees the faulty tile work.
Ms. Foord requested that Modern Builders’ license be revoked so that no others would be subjected to problems like she was.
In addition to the allegations set out in the Citation, ROC issued to Modern Builders warning letters for contracting while its license was suspended; for contracting outside the scope of its license; for failure to include in its contract the required elements; and for failing to obtain the required permit.
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. Ariz. Admin. Code § R2-19-119.
“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).
“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).
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.” Ariz. Rev. Stat. § 1-211(B).
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).
Parties to a ROC hearing are required to file and serve disclosure statements at least seven days before the hearing. See Ariz. Admin. Code § R4-9-118.
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
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:
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3. Violation of any rule adopted by the registrar.
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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....
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 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 that Modern Builders violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. In particular, the evidence shows that Modern Builders installed the shower mixing valve upside down, that the shower valve leaked causing damage to Ms. Foord’s home, that tile has not been properly installed, and that it was responsible for damage to a toilet and to tile.
The preponderance of the evidence shows that Modern Builders violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Modern Builders did not properly complete the tile work within the time set out in the May 14, 2018 Directive.
Because Modern Builders has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.
Aggravating factors
As of the hearing date, there was deficient tile-work at Ms. Foord’s home and Mr. Vega is unwilling to either correct that work or pay another contractor to do so. This raises a question as to Modern Builders’ scruples.
Ms. Foord was required to hire others to repair the leaking valve and related damage because Modern Builders did not live up to its responsibility to have that work properly corrected. This raises a question as to Modern Builders’ scruples.
The evidence of record supports a conclusion that the valve was leaking from the time it was installed meaning Modern Builders did not properly check its work, raising a question about its competence (or qualifications) as a contractor.
That Modern Builders’ license has been administratively suspended four times since January 2016 raises questions as to its ability to meet the qualifications for licensure.
Mr. Vega acknowledged that Modern Builders’ license was suspended when it entered the contract with Ms. Foord. Consequently, Modern Builders violated Ariz. Rev. Stat. section 32-1151.
Mitigating Factor
A review of ROC’s website shows that there have been no other complaints filed against Modern Builders’ license.
Conclusion
For the workmanship violations, the appropriate discipline would be for Modern Builders’ license to be suspended for the shorter of fourteen days or until it reimburses Ms. Foord for the repairs she already had completed and pays to have a contractor hired by Ms. Foord repair the tile. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990).
Because the amount that Ms. Foord paid for repairs is not on the record, this remedy is not possible (unless ROC reopens the matter to allow Ms. Foord the opportunity to prove her damages). Consequently, it is recommended that Modern Builders’ license be suspended for the shorter of fourteen days or until ROC receives proof that Modern Builders has paid a contractor of Ms. Foord’s choosing to repair the tile.
Considering the facts and circumstances of this matter, it is appropriate to assess against Modern Builders the maximum civil penalty of $500 for the violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Modern Builders LLC’s license number 286742 is suspended for fourteen days or until ROC receives proof that it has paid a contractor of Ms. Foord’s choosing to repair the tile, whichever occurs second.
IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Modern Builders LLC 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, September 26, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors