FINACT2018A-2269-ROC.pdf

2018A-2269-ROC · Registrar of Contractors · 2019-03-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Paul Stephen Moore, Case No. 2018-2269 COMPLAINANT, Docket No. 2018A-2269-ROC v. FINAL ADMINISTRATIVE DECISION One Source Remodeling LC, AND ORDER License No. ROC 312241, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on April 9, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand- delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE On page 6, lines 21 replace “September 7, 2018” with “August 15, 2018.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated February 28, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail February 28, 2019 to: Respondent One Source Remodeling LC 49 S Sycamore Ste 5 Mesa, AZ 85202 Complainant Paul Stephen Moore 4848 E Princess Dr Mesa, AZ 85205 Taylor W. Tondevold, Esq. Tondevold Law PLC 1635 N Greenfield Rd Ste 138 Mesa, AZ 85205

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Office of Administrative Hearings Roger A. Geddes, Administrative Law Judge Case No. 2018-2269 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 2.13.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Paul Stephen Moore, No. 2018A-2269-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

One Source Remodeling LC, License No: 312241

RESPONDENT

HEARING: January 24, 2019, 1:00 P.M. APPEARANCES: Complainant appeared through Taylor Tondevold, Esq.;

Respondent appeared through Ray Baxter, Owner and Qualifying Party, and Barbara

Ferraro, Owner

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. One Source Remodeling, LC (Respondent), is the holder of License Number 312241 issued by the Registrar of Contractors (Registrar). 2. On or about May 21, 2018, Paul Moore (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with

remodeling at a residence in Mesa, Arizona.

3. After an inspection performed by the Registrar on June 26, 2018, the

Registrar issued a Directive, dated July 6, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 30, 2018, as follows: Complaint Item 2: Won’t replace damaged door and drawer fronts. Complaint Item 4: Didn’t obtain an electrical & plumbing permits.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 2.13.2019 ROC LEGAL

Complaint Item 5: Poor workmanship on quartz countertops. 4. After Complainant’s amendment of his Complaint and after a second inspection was performed by the Registrar on August 10, 2018, the Registrar issued another Directive, dated August 15, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by September 7, 2018, as follows: Complaint Item 2: Replace face frame on right side of vanity. Complaint Item 3: Replace skin and scribe molding on right side of

vanity.

Complaint Item 4: Install scribe molding on linen base cabinet.

Complaint Item 5: Make bottom of kitchen cabinet solid (per kitchen cabinet example). Complaint Item 6: Skin inside of upper linen cabinet to match all others and replace warped doors. Complaint Item 7: Replace all vanity tops and splashes. Complaint Item 8: Replace all poorly cut tile (chips). Complaint Item 9: Level down rod for rain head in shower and secure all loose shower trim.

5. After being informed that Respondent had failed to fully comply with

Directive, the Registrar then issued a Citation to Respondent, dated October 18, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 6. The Registrar issued a Notice of Hearing, setting a continued hearing for January 24, 2019, at 1:00 P.M. At the hearing, Complainant Paul Moore testified on RECEIVED 2.13.2019 ROC LEGAL

his own behalf. Respondent presented the testimony of Roy Baxter, Owner and Qualifying Party. Dennis Bierma, the Registrar Investigator (Investigator), testified on behalf of the Registrar. Neither party submitted Disclosure Statements or exhibits.1 7. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directives issued by the Registrar as a result of his observations from his inspections. He testified further that he did not conduct a compliance inspection

because he had been told by Complainant that none of the Directive items had been

completed,

8. Complainant Paul Moore testified that none of the Directive items had been completed by Respondent. He stated that this was the case even though Respondent spent 25 1/2 hours in the residence after the Directives were issued. He further stated that Respondent initially stated that it did not pull permits, but that he had since been informed that permits were issued. With respect to Complaint item 2 concerning the vanity frame, he testified that he never requested tip-out drawers on the vanity. With respect to Complaint items 3 and 4, he testified that he removed the tile before the cabinets were installed and therefore did not cause any damage. With

respect to Complaint item 5 concerning a solid cabinet, he testified that the

salesperson had agreed to this. With respect to Complaint item 7 concerning vanity slabs, he testified that DSI came out with the fabricator in May 2018 but that he had not been advised that he was to pick another slab until August 2018. With respect to Complaint item 8 concerning chipped tiles, he testified that there were still chipped tiles. With respect to Complaint item 9 concerning an unlevel shower rod, he testified that the rod was still unlevel.

The Tribunal also took administrative notice of the documents submitted by the Registrar to the Arizona Office of Administrative Hearings. RECEIVED 2.13.2019 ROC LEGAL

9. Ray Baxter testified on behalf of Respondent that with respect to Complaint Item 2 concerning the vanity frame, the holes in the vanity face were caused by Complainant requesting a change from a false drawer under the sink to a tip-out drawer. However, at the hearing he indicated that a drawing dated as early as February 2018 relating to the project reflected tip-out drawers. With respect to Complaint items 3 and 4, he testified that these items were caused by Complainant removing tile. With respect to Complaint item 5 concerning a solid cabinet, he testified

that it was impossible and was not contemplated under the contract. With respect to

Complaint item 6 concerning the inside of the linen cabinet, he testified that it was

impossible but that he had agreed to replace the warped doors. He also stated he had a second cabinet made but that he was not permitted to install it after the Directive deadline. With respect to Complaint item 7 concerning vanity slabs, he testified that Complainant waited to pick countertops and finally went down and picked one. He stated he was unsure why his fabricator had yet to install them. With respect to Complaint item 8 concerning chipped tiles, he testified that the initial tile with bull nose had chips but that he inspected the replacement tile and that it did not have chips. With respect to Complaint item 9 concerning an unlevel shower rod, he testified that the tile

was removed to level it and that it was now level.

10. Mr. Baxter further testified that he made an effort to complete the corrections but Complainant would not permit further work after the Directive deadline. He further testified that he obtained all permits and that they had been signed off on. 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 RECEIVED 2.13.2019 ROC LEGAL

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 acts: … 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 written directive shall set forth the time within which the contractor is to complete the remedial action. 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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence

to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32- RECEIVED 2.13.2019 ROC LEGAL

1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. The Tribunal finds that Complainant has met his burden to show that the work was not done in a professional and workmanlike manner with respect to Complaint items 2, 3, 4, 5, 6, and 7 in the August 15, 2018, Directive. It was noted in the Investigator’s inspection notes that Respondent had expressly agreed to correct Complaint items 3, 4, 5, 7, and 9. The Tribunal further finds that Complainant has not met his burden to show that the work was not done in a professional and workmanlike manner with respect to Complaint items 8 and 9. Complainant offered no physical evidence to refute Respondent’s credible testimony that these items were repaired. The Tribunal also finds that with respect to the July 6, 2018, Directive, Respondent has corrected Complaint item 4 regarding permits, and that Complaint items 2 and 5 are repeated in the later Directive. 7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence

to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-

1154(A)(22). The evidence supports a finding that Respondent did not complete the

corrective work. Respondent argued that Complainant had refused to allow such

completion after the Directive deadline, even though Complainant had no obligation to do so. The Tribunal finds that Respondent had ample time to complete the corrective work considering the first Directive was issued on July 6, 2018, and the second Directive deadline was on September 7, 2018. Accordingly, Respondent has failed to present a valid justification for not proceeding with corrective work. 8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) relating to Complaint items 2, 3, 4, 5, 6, and 7 in the August 15, 2018, Directive, 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, One Source Remodeling, LC’s, License Number 312241 is suspended for two days. RECEIVED 2.13.2019 ROC LEGAL

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order. IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty. 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, February 13, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors