ALJDEC decisions subject to certification as final

2018A-2217-CHC-ROC · Registrar of Contractors · 2018-11-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2018 APPEARANCES: Gabriela Zuart and Robert Zuart, Complainants; Genaro Cano [a/k/a Genaro C. Rivera], Respondent, Steve Lawton, Sr. Investigator, ROC. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT Respondent, Red Wood Maintenance Services LLC [Red Wood] is the holder of License Number 278029 issued by the Arizona Registrar of Contractors (Registrar). On or about January 4, 2018, Complainants Robert and Gabriela Zuart [“Zuart”] entered into a contract[1] with Respondent to provide, among other things, installation of travertine tile in Zuart’s new construction home. On or about May 29, 2018, the Registrar received a Complaint against Red Wood from Complainant Zuart alleging Red Wood’s abandonment after Zuart made a $50,000.00 down payment to Red Wood. The Registrar assigned the complaint to ROC Investigator Matt Gunstra.[2] On or about June 22, 2018, Mr. Gunstra conducted a Job Site Inspection [JSI]. Both the Complainants and the Respondent were present for the JSI. On June 26, 2018, Investigator Gunstra issued a Written Directive with a Corrective Work Order [CWO] to Respondent that noted 34 separate workmanship issues as follows:[3] After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). ….You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 7/13/18. [emphasis added]. You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 8: Sink backsplash is missing. Investigator’s Observation: Complainant purchased the vanity, top and backsplash. Respondent installed them but there is no backsplash at this time. Respondent says he is aware there was a backsplash on site. Complainant says it is in the garage somewhere but doesn't know where. At this time Respondent said he will install the backsplash if Complainant can provide it to him. Governing Rule: Workmanship Rule: R4-9-108; incomplete work.

Complaint Item 9: Garage wall has a hole. Investigator’s Observation: Respondent admitted to making the hole in this location during his work. Respondent should correct by appropriate means. Governing Rule: Workmanship Rule: R4-9-108; unrepaired damage.

Complaint Item 11: Cabinet has split in wood at screw. Investigator’s Observation: There is a split in the wood frame at the fastener. This can easily be filled and is cosmetic in nature. Governing Rule: Workmanship Rule: R4-9-108; unfilled cracks in trim work.

Complaint Item 15: Travertine grout is cracking. Investigator’s Observation: I observed several floor tiles that are cracked and may have grout cracking as well. The grout at the rear exit door is cracking and missing. Respondent shall correct by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #8

Complaint Item 16: Travertine floor tile not level. Investigator’s Observation: A small number of floor tiles have lippage over 1/32" and should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #6

Complaint Item 17: Travertine tiles are cracking. Investigator’s Observation: I observed several floor tiles that are cracked. At least one tile is excessively hollow and has damage on the corner. This may have resulted from or been aided by the hollowness. Respondent shall correct by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #1.

Complaint Item 18: Hollow floor tiles. Investigator’s Observation: Up to 20% of the installation may exhibit hollowness as long as the tile is intact and solidly bonded. See Comments under Complaint #17. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #3.

Complaint Item 21: Ceiling in kitchen is not level at girder truss. Investigator’s Observation: In the kitchen there is a structural member in the ceiling spanning the kitchen at the extension. The drywall attached to it sags across its length causing an unleveled appearance by over 3/8"; especially at the wall. The amount of sag is excessive and likely due to framing or hangers underneath. The appearance should be corrected by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Gypsum Wall Board #1

Complaint Item 22: French door has gaps showing light through. Investigator’s Observation: There is some light at the weather- stripping on the rear door. Additional pads should be placed to provide a tight seal. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Weather strip and thresholds #1.

Complaint Item 27: Exterior patio travertine is cracking again. Investigator’s Observation: The rear patio has cracks in the travertine. Respondent shall correct by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #1.

Complaint Item 28: Exterior patio is breaking at the border Investigator’s Observation: The travertine extends past the underlying concrete slab to the point where it is unsupported on the edge. This has allowed chipping off on the edge. Respondent shall correct by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #1.

Complaint Item 30: Exterior rear of home stucco does not go all the way down. Investigator’s Observation: At the rear extensions built by Respondent the exterior wall sheathing, weep screed, and stucco do not extend down to the bottom of the sill plate. Approximately 1/2" to 3/4" of framing sill plate is exposed above the foundation. Proper installation includes the sheathing extending to the bottom of the framing and the stucco weep screed extending below that to allow for proper water shedding. Respondent's work does not meet minimum standards and must be repaired.

Complaint Item 32: Metal tie sticking out of yard. Investigator’s Observation: An existing post was removed to make way for the kitchen extension. The post base was not removed and is sticking out of the yard. This should be removed. Governing Rule: Workmanship Rule: R4-9-108; incomplete demo.

Complaint Item 33: Exposed wood at side of house missing stucco. Investigator’s Observation: All exposed framing under the eaves should be sealed with water barrier and stucco applied as necessary. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Stucco #4.

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, Respondent did correct a majority of the listed items, but as of the September 4, 2018 Compliance Inspection, Respondent had failed to correct the following:[4] Complaint Item 15: Travertine grout is cracking. Investigator’s Observation: I observed several floor tiles that are cracked and may have grout cracking as well. The grout at the rear exit door is cracking and missing. Respondent shall correct by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #8. Not completed at time of compliance inspection.

Complaint Item 16: Travertine floor tile not level Investigator’s Observation: A small number of floor tiles have lippage over 1/32" and should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #6.Not completed at time of compliance inspection.

Complaint Item 18: Hollow floor tiles Investigator’s Observation: Up to 20% of the installation may exhibit hollowness as long as the tile is intact and solidly bonded. See Comments under Complaint #17. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Tile #3. Not completed at time of compliance inspection.

Complaint Item 21: Ceiling in kitchen is not level at girder truss Investigator’s Observation: In the kitchen there is a structural member in the ceiling spanning the kitchen at the extension. The drywall attached to it sags across its length causing an unleveled appearance by over 3/8"; especially at the wall. The amount of sag is excessive and likely due to framing or hangers underneath. The appearance should be corrected by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Gypsum Wall Board #1. Not completed at time of compliance inspection.

On September 4, 2018, the Registrar issued a Citation versus the Respondent alleging violations of the following statutes:

Charge 1: 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 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply

A hearing was held on November 14, 2018 before the Office of Administrative Hearings. At hearing, Sr. ROC Investigator Steve Lawton testified that at his compliance inspection on August 28, 2018, all but five items in the CWO had been completed.[5] Each of the listed items were below standard workmanship. Complainant testified that by the Compliance Inspection repairs for all but five items in the CWO had been completed.[6] Testifying for the Respondent, Genardo Cano [a/k/a Genaro C. Rivera], stated that Zuart was the Complainant in a prior Complaint against Red Wood involving the same property and the same contract. He stated that Red Wood was disciplined with a $500.00 civil penalty and a one day suspension of its license. After the Registrar’s Directive in the previous case, Mr. Cano said Zuart filed an additional Complaint alleging workmanship issues complained of in this case that Zuart discovered after the Registrar’s Directive in the prior case. Mr. Cano defended asserting that for the JSI on the prior Complaint [JSI #1], cracked and broken travertine tiles were blue tape marked and Respondent repaired all marked areas appropriately. However, after the JSI #1, Mr. Cano contends that Zuart proceeded to explore Red Wood’s work and put blue tape down to mark more areas than were present at the JSI #1. Cano complains that this is not fair and Red Wood should not be held accountable for items listed in the current case, 2018A- 2217-CHC-ROC, since Zuart neglected to point the new Complaint’s workmanship issues out during the JSI #1. Mr. Cano admits on cross- examination that regardless of whether workmanship issues were discovered before or after a job site inspection by the Registrar, the Respondent is responsible for repairs for two years. Mr. Cano stated that if required by the ROC, he will be happy to fix the travertine tiles. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 26, 2018 that Respondent had suffered discipline regarding the prior Complaint from Zuart on this contract. That Respondent had been disciplined previously on the same contract is both aggravating and mitigating. Aggravating circumstances do not outweigh mitigating circumstances,

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 there were items of Complainant’s project that needed to be repaired because of Respondent’s poor or sub-standard workmanship. Therefore, Complainant has proven by a preponderance of the evidence that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby in violation of A.R.S. § 32-1154(A)(3).[7] Complainant has proven by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(22).[8]

RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the order, Red Wood Maintenance Services LLC, License No. 278029, Red Wood Maintenance Services LLC, License No. 278029 shall be suspended one (1) day. FURTHER IT IS RECOMMENDED this matter be remanded to the Registrar for further action as may be necessary and proper.

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, November 26, 2018.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See, Agency Record, “Intake Complaint Submittal1.pdf [2] Mr. Gunstra is no longer employed with the Agency. Mr. Gunstra’s direct supervisor, Sr. Investigator Steve Lawton, appeared at hearing to review on the record Mr. Gunstra’s records kept with the Agency. [3] Exhibits C-93, 94, 95 and 96 “Registrar’s Directive.” [4] Exhibit C-100 – Compliance Inspection Notes. [5] See, ¶5, supra. [6] Ibid. [7] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [8] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

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