FINACT2018A-3227-ROC.pdf

2018A-3227-ROC · Registrar of Contractors · 2019-02-28

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Rozalyn S. Capps, Case No. 2018-3227 COMPLAINANT, Docket No. 2018A-3227-ROC v. FINAL ADMINISTRATIVE DECISION Brian Francis Winstanley, AND ORDER DBA: Tumblewood Remodeling, License No. ROC 276057, 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 3, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 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

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 22, 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 22, 2019 to: Respondent Brian Francis Winstanley DBA: Tumblewood Remodeling 7344 W Tumblewood Dr Peoria, AZ 85382 Complainant Rozalyn S. Capps 18453 W Saguaro Ln Surprise, AZ 85388 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

Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge Case No. 2018-3227 / 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 1.25.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rozalyn S Capps, No. 2018A-3227-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Brian Francis Winstanley, DBA: Tumblewood Remodeling, License No. ROC 276057, RESPONDENT.

HEARING: January 11, 2019, at 1:30 p.m. APPEARANCES: Rozalyn S. Capps (“Complainant”) appeared on her own behalf; Respondent Brian Francis Winstanley DBA: Tumblewood Remodeling (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. According to the Arizona Registrar of Contractor’s (“the Registrar’s”) public

website, on or about December 13, 2011, the Registrar issued License No. ROC

276057 for Specialty Dual CR-61 Carpentry, Remodeling and Repairs to Respondent.

2. On or about July 16, 2018, Complainant filed a complaint with the Registrar

against Respondent alleging various items of poor workmanship in Respondent’s

performance of its contracts to remodel three bathrooms at Complainant’s house at

18453 W. Saguaro Lane, Surprise, Arizona 85388, which resulted in at least one leak.1

3. According to the complaint, Complainant had paid Respondent the full contract amount of $5,280.00. The contract was both written and oral. Complainant

See Registrar’s electronic file at pdf 42. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 1.25.2019 ROC LEGAL

complained that she had received an inflated invoice from Respondent on February 22, 2018, after work on the project was complete. 4. Complainant attached a statement to her complaint that provided in relevant

part as follows:

On 4/26/17, I was sent an estimate via email. I had a verbal conversation with Randi Schaubert, who is the designer/ assistant to the contractor, and agreed to go ahead with the job. We also discussed the rest of the estimate as it related to the rest of the job including tile work, glass work, prepping showers for slabs and any other finish work necessary. Randi advised me that once demo was done, I would receive another invoice regarding the rest of the charges. On 4/28/17, I received an invoice and work begun [sic] on my project. On 5/13/18 [(sic) Complainant may have meant 5/13/17], Randi came to my home to view the project and determine final charges. She advised me that she would be meeting with Brian Winstanley the next day and they would prepare the invoice for all other work necessary. I never received that invoice. I asked several times and it was never provided. Mistakes started happening and I expressed my concerns to Brian about not having that invoice and my concerns that he may inflate the bill to accommodate for mistakes. I paid tile subcontractor and shower glass contractor separately. Also, I bought all slabs, tile, sinks, and some of the plumbing fixtures. In December 2017, Brian handed me a bill for around $12,000. It was just a bill and not itemized. I refused to pay until #1. I had an itemized bill and #2. The work was complete with no further leaking. The next bill I received was via email on 2/22/2018. I believe it was extremely inflated! 2

5. Complainant attached to her complaint copies of six of Respondent’s

estimates and invoices for performing work at her house, as follows: (1) An April 26,

2017 estimate in the total amount of $5,387.20, with itemized amounts to demo the

counter and shower in two bathrooms, demo the counter in the powder room, to fabricate and install two showers and a vanity, and to provide four white rectangular sinks;3 (2) An April 28, 2017 invoice in the total amount of $5,436.99, for the work The Registrar’s electronic file at pdf 44 (emphasis added). 3 See the Registrar’s electronic file at pdf 45. RECEIVED 1.25.2019 ROC LEGAL

described on the April 26, 2017 invoice, except that Complainant was only charged for two white rectangular sinks and was charged a 3% credit card processing fee;4 (3) The April 28, 2017 invoice, modified to remove the two sinks, in the total amount of

$5,280.10, marked paid;5 (4) An email from Respondent dated February 22, 2018,

referring to two attached invoices that he stated he thought he had provided;6 (5) An

October 21, 2017 invoice in the total amount of $5,235.35, for framing a 10” drop-down

soffit and creating a 10º gable in the center, installing 2 can lights with separate

switches, installing ½” drywall on the ceiling and side of the soffit, with a round metal

edge, first, second, and third coat of mud, sand, wet sand and texture paint, installing

new plumbing for guest shower, with a detailed description of plumbing fixtures,

installing R-13 insulation to deaden sound, installing ½” hardibacker to 84” height,

redgard and seam tape all corners (3 applications), building a small bench for seating

and recessing additional areas for soap products in the wall, installing a new above

counter top sink and faucet, and installing supply and drain lines;7 and (6) Another

October 21, 2017 invoice in the total amount of $4,919.54, for performing similar work,

with the exception of the soffit, in the master shower, but also including installing of a

chandelier type lighting, a new LED fixture in the shower area, and two new sinks.8 6. None of the estimates or invoices included the jobsite address or Complainant’s mailing address, a description of all the work to be performed, the total price of the work, an estimated date of completion, the amount of any down payment, progress payment, and final payment, when such payments would be due, Complainant’s responsibility to have related work performed by other contractors, if any, or information about filing a complaint with the Registrar for violations of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A). 7. The Registrar assigned the complaint to its Investigator, Stephen Lawton, for investigation. Investigator Lawton performed a jobsite inspection on August 6, 2018,

See the Registrar’s electronic file at pdf 46. See the Registrar’s electronic file at pdf 47. See the Registrar’s electronic file at pdf 48. See the Registrar’s electronic file at pdf 49. 8 See the Registrar’s electronic file at pdf 50-51. RECEIVED 1.25.2019 ROC LEGAL

which both parties attended. Investigator Lawton was unable to substantiate ten of Complainant’s thirteen specific complaints, including that the shower and sink were leaking in her son’s bathroom, and that walls had warped as a result of the leak.

Investigator Lawton did not substantiate complaint item #12, that the LED lighting that

Respondent had installed was not functioning properly, but noted that “permits [were]

not pulled for installation.”9

8. On August 22, 2018, Investigator Lawton on behalf of the Registrar issued a

Directive that required Respondent on or before 5:00 p.m. on September 10, 2018, to

perform the following repairs:

1. Complaint item 4: Caulking/silicone cracking, coming out. 2. Complaint item 7: Bench in master bath not pitched correctly. 3. Complaint item 11: Tunnel grinded into quartzite slab improperly (Master) 4. Complaint item 12: Led lighting installed and not functioning properly. Permits not pulled 5. Permit required for remodel. Respondent is to obtain building permits from local jurisdiction required to complete project, if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to correct by Appropriate Means.10 9. On October 1, 2018, Respondent sent an email to Investigator Lawton, stating that he had sent a text to Complainant on September 25, 2018, “asking for a time to come out to remedy the shower issues she had along with the tile contractor who performed the work. She replied that she would be available on October 4th for your inspection.”11 10. On October 4, 2018, Investigator Lawton performed a compliance inspection and found that Respondent had not obtained permits and that repairs had not been completed to any of the four workmanship issues identified on the August 22,

See the Registrar’s electronic file at pdf 89-90. The Registrar’s electronic file at pdf 80. 11 The Registrar’s electronic file at pdf 8. RECEIVED 1.25.2019 ROC LEGAL

2018 Directive.12 Investigator Lawton referred the complaint to the Registrar’s Legal Department. 11. On October 11, 2018, the Registrar issued a Citation against Respondent’s

contractor’s license, charging cause to revoke or suspend the license under A.R.S. §

32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-

1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).13

12. Respondent filed a timely written answer to the Citation, stating in relevant

part as follows:

I sent Mr. Lawton an email by the deadline and explained that additional time was needed to complete due to [Complainant’s] demanding and unavailable schedule. No Further communication was received from [Complainant] to allow us access to correct the items in question.

The next compliance inspection was scheduled for Oct.4th at 2:00pm. I contacted [Complainant] on Tuesday 9-25-18 by text message asking for a time to come out and remedy the shower issues she had, along with the contractor who performed the work. She said her only availability would be for your inspection on October 4th. . . . ....

The last thing I would like to address is the fact that I have not been paid for any of the work or parts I have provided to [Complainant]. I have submitted two different itemized bills (one for each remodel) that are well over 8 months old now and still have not collected on. . . .14

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 13. An evidentiary hearing was held on January 11, 2019. Complainant testified and submitted fifteen exhibits. Respondent testified. Investigator Lawton also testified. ////

See the Registrar’s electronic file at pdf 18-19. See the Registrar’s electronic file at pdf 54 – 60. 14 The Registrar’s electronic file at pdf 6-7. RECEIVED 1.25.2019 ROC LEGAL

HEARING EVIDENCE

14. On September 10, 2018, at 4::05 p.m., Respondent send an email to

Investigator Lawton, with a copy to Complainant, that Complaint items 4, 7, and 12 had

been fixed and that Complainant had “approved a little extra time to take care of these

items.”15

15. Investigator Lawton testified that he called Complainant the day after he

received Respondent’s September 10, 2018 email to ask her if she wanted to provide

access to Respondent to complete repairs or to move on with the complaint process.

Investigator Lawton testified that if Complainant had told him that work was being done,

he would have asked her to consider extending the deadline in the August 22, 2018

Directive. Because she did not say that work was being done, he scheduled the

compliance inspection.

16. Respondent provided to Investigator Lawton a text exchange with

Complainant, in relevant part as follows: 9/25/18 1:54 PM [Respondent:] Hi Rox, would you give me a call back to text back and let me know what your next day off is. I need to come out and assess the problem with the shower one more time. Ryan been trying to get ahold of too for the same reason so maybe both of us can come. Thx. 9/25/18 2:56 PM [Complainant:] I will be home on October 4th when the inspector come…I haven’t heard from Ryan except a text requesting pictures…the inspector for the city advised me he sent them to him…that’s all I’ve heard from Ryan…I had a mossed call from him today but he didn’t leave a message…I’m at work and unable to talk on the phone while working16 17. Complainant testified that she had spent $35,000.00 on the project, including materials, but that she had been informed that it would cost over $50,000.00 to repair and complete the project.

The Registrar’s electronic file at pdf 8. 16 The Registrar’s electronic file at pdf 10-11. RECEIVED 1.25.2019 ROC LEGAL

18. Complainant acknowledged that she had hired a tile contractor named Ryan Prokoper in the past and that, because Ryan does not install the granite slabs that she wanted in her bathrooms, Ryan referred her to Respondent. The Registrar’s

public website does not show that Ryan is listed on any contractor’s license.

19. Complainant acknowledged that Ryan and his employees, Kurt and

Freddie, installed the shower pans and tile. Complainant acknowledged that she paid

Ryan directly, but insisted that he was Respondent’s subcontractor. Complainant

testified that she paid Ryan directly because Ryan or Respondent asked her to.

20. Respondent testified that Complainant hired Ryan and that Ryan was not

his subcontractor. Respondent testified that, nevertheless, he tried to fix the project,

but that Complainant has a busy schedule that prevented him from scheduling the two

contractors that Complainant hired, including Ryan, for necessary repairs.

21. Complainant submitted her emails to Ryan in May 2017, in relevant part as

follows:

May 12, 2017, 5:48 PM [Ryan:] Well. My day got completely hijacked. Didn’t get over there today so I have you down for tomorrow at 12:30. Will your son be there to let me in? Hope [your] travel day was non stressful.

[Complainant:] No problem….let me check if he’ll be home Yes he will be home

[Ryan:] Great! I’ll be there Thx!

May 13, 2017, 1:19 PM [Ryan:] Hi! So all the tile delivered. I’m here. You know. There will be plenty of soapstone left over to use for the face of the tub. Think about it….. May 15, 2017, 3:20 PM [Ryan:] Howdy! Not sure if you heard from [Respondent] yet. But just a heads up. Everyone was out there this morning. Only to see that Freddy (tile) did not finish the shower pans to the specifications needed for granite. 5 guys on deck all got sent home. Needless to say slight RECEIVED 1.25.2019 ROC LEGAL

delay in order to do the job right and not have a disaster in the future. Further project updates to come. Welcome home17 Ryan’s texts to Complainant and Complainant’s texts to Ryan were not included in the texts that Complainant submitted between her and Respondent.18 22. Complainant submitted texts between her and Respondent to attempt to establish that Ryan was Respondent’s subcontractor, in relevant part as follows: Jun 10, 2017, 12:34 PM [Complainant:] Hey Brian…there seems to be a small drip coming from pipe in kids bathroom…the one that is in the ceiling. Did you talk to Ryan last night?? [Respondent:] Got vm. I’ll call him now [Complainant:] Hear there are problems at the house…my son is texting me…doesn’t sound like this guy knows what he’s supposed to be doing

It sounds like there is some confusion about laying this tile in my house.

[Respondent:] On it. Complainant:] Ok..thanks…I’m starting to freak out a little

[Respondent:] No problem19

Jun11, 2017, 9:38 PM [Respondent:] Hi I can come anytime. I thought Ryan was talking I will forward to him Thx B [Complainant:] Just spoke with Ryan…he’s coming at 11…I will be back around 1…he said he will still be here so they will just started on the floors first.20

Complainant’s Exhibit 12. See Complainant’s Exhibits 10 and 11. Complainant’s Exhibit 10 at 2-3. 20 Complainant’s Exhibit 10 at 4. RECEIVED 1.25.2019 ROC LEGAL

Jun 13, 2017, 11:49 AM [Complainant:] FYI…I paid Kurt today…I paid Armando for glass in boys shower when he was there Saturday Also, did you locate the shower head??? [Respondent:] Harrah’s, I checked both of those orders and neither one had it but currently I must have been still shopping for it I will order one when I get home21 Jun 27, 2017, 11:13 AM [Complainant:] So Kurt is at my house…my son is texting me telling me he can’t do metal piece in his shower because it doesn’t fit…so I have no idea what to do or tell him….unbelievable! [Respondent:] I am going to leave the church and go to your house to find out. [Complainant:] I’m sorry…but thank you…this tile shit is wearing me down.22 June 27, 2017, 2:12 PM [Complainant:] Are you at the church?? I’m leaving work now…wanted to see if I could come by and talk for a couple minutes

[Respondent:] Yes 151 st and deer Valley dr.

[Complainant:] Ok I’ll stop by…thanks

[Respondent:] Ok [Complainant:] Hey Brian I’m here

[Respondent:] Picture of Ross. Stand firm. So supposed to say take care Roz

[Complainant:] Thanks! I talked to Ryan…doesn’t sound like he’s going to come out here Complainant’s Exhibit 10 at 9. 22 Complainant’s Exhibit 10 at 7. RECEIVED 1.25.2019 ROC LEGAL

He’s supposed to call Kurt and call me back.23

June 30, 2017, 7:25 PM [Complainant:] So Kurt was here until about 5 tonight…he finished deco band and floor in kids bathroom…just needs to probably touch up some grout…you can still see some white coming through on floor…overall looks great! Very happy he was able to make it work with the deco band…it looks fabulous! 24 23. Respondent testified that, when Ryan started Complainant’s project, Respondent was working on a project at a church nearby. Because he tries to be a nice guy and considered Complainant to be a friend, he took his time to try to help her in her dealings with Ryan and his employees. Respondent insisted that he did not hire or agree to supervise Ryan and his employees. 24. By the time of the hearing, Respondent had obtained a permit for the project from the City of Surprise, but had not performed any additional repairs. 25. Complainant submitted Respondent’s texts to her after he had obtained the permit, in relevant part as follows: Wed, Sep 19, 8:30 AM [Respondent:] Hi Roslyn good morning! I was just wondering if you can send me the pictures that you have of the bathrooms. I’m talking with the inspector from Surprise and he wants to see a couple more so I just wanted to go through

Wed, Sep 19, 2:00 PM [Complainant:] I don’t believe I have anymore pictures than what I already sent to him

Thu, Sep 20, 8:22 AM [Respondent:] Is there anyway you can send me the pictures you have to [email address] Wed, Sep 26, 12:26 PM [Respondent:] Can you call me when you get a second

Complainant’s Exhibit 10 at 5-6. 24 Complainant’s Exhibit 10 at 8. RECEIVED 1.25.2019 ROC LEGAL

Hey [Rosalyn] I just want to get with you because I know they’re trying to blame me for the pan being wrong but the inspector said if he could see more pictures that he might pass it. I don’t know why he’s going off of pictures for the pan but that pan is perfectly fine that’s why I just want to get to the bottom of this [Complainant:] I don’t have any more pictures…and every contractor I’ve had look at it have agreed it wasn’t doing me correctly…which would probably explain the leaking… I will not be available . . . until next week I’m not sure what else you want from me [Respondent:] The pan? The leak came from the bench not being properly done I thought. I look at you as a friend and would never do you dirty on the install. If the pan was improperly installed I’ll definitely take care of it on my end but I just don’t think it was

[Complainant:] I have no other pictures…so what do you want from me?25

26. Investigator Lawton testified consistently with his jobsite inspection report and compliance inspection report. Investigator Lawton declined to comment on the 100 photographs that Complainant submitted to attempt to establish the leaks that he did not substantiate at his jobsite inspection because he did not know when the photographs had been taken. Investigator Lawton testified that could not order destructive testing to show work that was covered. 27. Investigator Lawton testified that he is a certified building inspector. A permit is required for a major bathroom remodel that involves converting a bathtub into a shower and installation of new showers. Investigator Lawton testified that building officials with the local jurisdiction had informed him that most of the work would have to be demo-ed and redone so that building inspectors could test and inspect the shower pans for the two showers.

25 Complainant’s Exhibit 11. RECEIVED 1.25.2019 ROC LEGAL

28. Respondent testified that he did not know a permit was required to substantially remodel Complainant’s three bathrooms. 29. Pursuant to A.A.C. R4-9-117, administrative notice is taken of

Respondent’s license history as shown on the Registrar’s public website. On this date,

Respondent’s license was current and in good standing. Respondent’s license has

never before been disciplined and Complainant’s appears to be the only complaint

pending against the license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.26

2. Complainant bears the burden of proof to establish cause to suspend or

revoke Respondent’s license by a preponderance of the evidence.27 Respondent bears

the burden to establish factors in mitigation of the penalty and affirmative defenses by

the same evidentiary standard.28

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”29 A preponderance of the evidence is “[t]he 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.”30 4. Because none of the estimates or invoices included the jobsite address or Complainant’s mailing address, a description of all the work to be performed, the total price of the work, an estimated date of completion, the amount of any down payment, progress payment, and final payment, when such payments would be due, or information about filing a complaint with the Registrar for violations of A.R.S. § 32- 1154(A) within the time allowed by A.R.S. § 32-1155(A), the evidence established

See A.R.S. § 32-1154(A). See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). 29 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 1.25.2019 ROC LEGAL

grounds to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(12),31 specifically A.R.S. § 32-1158(A).32 As a factor in aggravation of the penalty, resolution of the issues in this matter would have been simplified and, possibly, this dispute could

have been avoided if Respondent’s contract had complied with A.R.S. § 32-1158(A)

and the parties had been made aware of their respective contractual obligations from

the outset.

5. Complainant’s own evidence establishes that Ryan was her subcontractor.

In mid-May 2017, she directly scheduled his work and in mid-June 2017, paid him and

the glass subcontractor whom she had also hired directly for their work. Both parties

acknowledged that Ryan installed the shower pans. Respondent’s written answer,

texts, and emails consistently state that, although he was willing to coordinate Ryan’s

work to comply with the Registrar’s Directive to avoid suspension or revocation of his

BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1158(A) provides 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 after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . RECEIVED 1.25.2019 ROC LEGAL

contractor’s license, he did not hire Ryan at the outset of the project, was not paid to supervise or pay Ryan, and was not responsible for Ryan’s work. 6. Although Respondent later acquiesced in Complainant’s request for help in

coordinating and overseeing Ryan’s work, apparently after Ryan had installed the

shower pans, Complainant did not establish that Respondent subcontracted with Ryan

or was paid to supervise Ryan and other unlicensed subcontractors whom Complainant

hired to work on the project. It appears that Complainant acted as general contractor in

her bathroom remodeling project. No evidence indicated that Complainant knew that a

permit was required. But, as a licensed contractor, Respondent should have known

that a permit was required for the job.

7. As a licensed contractor, Respondent should not agree to work on any

project that requires a permit unless he first ascertains that a permit has been obtained.

Complainant therefore established grounds to suspend or revoke Respondent’s license

under A.R.S. § 32-1154(A)(2).33 As a factor in mitigation of the penalty, Respondent

eventually obtained a permit.

8. Respondent established that Complainant did not pay him for all the work

that he performed on her project. However, if a licensed contractor undertakes to perform construction work, it must comply with the Registrar’s standards, even if the contractor subsequently is not paid for the work.34 9. Investigator Lawton credibly testified that his jobsite inspection identified the four workmanship deficiencies listed on the August 22, 2018 Directive. Therefore,

A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which 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.” If Complainant makes a claim to the Residential Contractors’ Recovery Fund and is found to be an “injured person” as defined by A.R.S. § 32-1131(3), A.R.S. § 32-1132(A) limits payouts from the Fund to “the actual damages suffered by the claimant as a direct result of the contractor's violation but . . . not [to] exceed an amount necessary to complete or repair a residential structure . . . .” For the purposes of A.R.S. § 32-1132(A), “actual damages” are the reasonable cost of repairing the contractor’s defective work and completing the project, minus any portion of the contract price still unpaid to the original contractor. See Ramsey v. Arizona Registrar of Contractors, 241 Ariz. 102, 106, 384 P.3d 316, 320 (App. 2016). RECEIVED 1.25.2019 ROC LEGAL

Complainant established grounds to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),35 namely A.A.C. R4-9-108.36 10. Construction is not a perfect art and, generally, contractors must be

afforded an opportunity to correct their workmanship before their licenses may be

suspended or revoked. Because the texts and emails that Respondent submitted to

attempt to establish that Complainant refused to allow access for repairs were dated on

or after the September 10, 2018 deadline on the Directive, however, Respondent failed

to establish that Complainant denied reasonable access to allow it to perform the

repairs required by the Directive. Therefore, Complainant established grounds to

suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).37

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final

order in this matter, License No. ROC 276057-D of Respondent Brian Francis

Winstanley, DBA: Tumblewood Remodeling shall be suspended for a period of five (5) business days. It is further recommended that Respondent shall pay the sum of $500.00 (five hundred dollars) as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 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 any outstanding prior civil penalty.

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.” 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)(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.” RECEIVED 1.25.2019 ROC LEGAL

It is further recommended that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified his form contracts to include all of A.R.S. § 32-1158(A)’s nine

required terms. If Respondent fails to provide such acceptable written proof,

Respondent’s contractor’s license shall be suspended until he does so.

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

five days from the date of that certification.

Done this day, January 24, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors