ALJDEC decisions subject to certification as final

2018A-341-CHC-ROC · Registrar of Contractors · 2018-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Breck and Christine Arnold,

COMPLAINANT,

v.

Minuteman Home Services LLC,

License No: 316190, 242804, 290005 and 251474

RESPONDENT.

No. 2018A-341-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 25, 2018, 8:30 A.M.

APPEARANCES: Greg Gillis, Esq., and Lauren Reynolds, Esq., appeared on behalf of Complainants; Fidelis Garcia, Esq., appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Minutemen Home Services, LLC, (Respondent), is the holder of License Numbers 316190, 242804, 290005, and 251474 issued by the Registrar of Contractors (Registrar).

2. On or about January 24, 2018, Christine and Breck Arnold (Complainants), filed a Complaint against Respondent with the Registrar alleging poor and incomplete work in connection with remodeling work by Respondent at Complainants’ residence in Apache Junction, Arizona.

3. After an inspection performed by the Registrar on March 7, 2018, the Registrar issued a Directive, dated March 12, 2018, and then an Amended Directive, dated March 27, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 11, 2018, as follows:

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

Complaint Item 1: HVAC SPLIT Unit failed x2 and was relocated. Interior/Exterior walls not finish

Complete patching north (N) wall in the Guest Bedroom and, the exterior wall of the Guest Bedroom.

Complaint Item 2: HVAC changes caused MBR air flow problem, issue not addressed by contractor

Suction of return air overpowers and closes Master Bedroom door at a distance of approximately 3 1⁄2′′ to 4′′. No means of return air in bedroom; distance from floor tile to bottom of door is 1⁄4′′.

Complaint Item 4: walk-in; foundation not filled in under tub 1ftx4ft. & fixtures leak under

Fill floor cavity under walk-in tub in hall bathroom.

Complaint Item 6: All 6 interior doors installed incorrectly and finish size not ADA as requested

Guest Bedroom door opening measured 34 5⁄8′′ at the top and 34 1⁄4′′ at the bottom and noted opening is out of square, failed to properly mortise all (3) hinges on hinge jamb and door of Master Bedroom and, failed to properly finish miter joints of Master Bedroom door (casing) trim.

Complaint Item 7: Exterior MBR slider door incorrectly installed does not lock, will not glide

Patio slider door in Master Bedroom hard to open and close, lock does not engage and screen does not lock and is missing lock catch and used drywall screw to secure door catch for patio door lock.

Complaint Item 8: Exterior trim LR slider not completed

Failed completely seal and re-stucco around exterior lf Living Room patio door.

Complaint Item 9: Interior trim BR slider not completed

Failed seal around Mater Bedroom patio door and, to install wall casing and trim.

Complaint Item 10: Interior doors trim/ wall trim falling off and poor workmanship (you must see)

Failed to completely install (casing) trim around Laundry Room Pocket door, large gaps between installed (casing) trim, paint exposed wood and pocket door pull/lockset does not properly fit in door, failed to completely install (casing) trim around Guest Bedroom Pocket door and paint exposed wood, improperly installed baseboard trim on north (N) wall of Guest Bedroom, improperly filled joints in baseboard on both sides of Hallway, improper installation of baseboard on southwest (S/W) corner of west (W) wall of front entry to left of Laundry Room entry and, failed to properly finish walls and, properly finishing and, installing (casing) trim for Garage fire door.

Complaint Item 11: MBed 36’ swing door incorrect install (hinges, height, trim etc)

Failed to properly mortise all (3) hinges on hinge jamb and door of Master Bedroom, failed to properly finish miter joints of Master Bedroom door (casing) trim and, failed to properly cut bottom of casing of Master bedroom leaving large unfinished irregular gaps between casing and tile.

Complaint Item 12: MBath shower flexes at back wall, base not caulked, no safety bar at shower exit

Failed to properly fasten and secure north (N) shower wall of Master Bathroom walk-in shower.

Complaint Item 14: Electric outlets with no plates

Missing cover plates on outlets on both sides of Master Bedroom patio door and, missing cover plates in Guest bedroom on south (S) wall.

Complaint Item 17: Drywall repairs poor workmanship and incomplete.

Failed to properly complete wall patching above Master Bedroom Door.

4. After a compliance inspection on April 17, 2018, at which the Registrar observed that corrective work had not been fully performed, the Registrar then issued a Citation to Respondent, dated April 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);

c. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of a license);

d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar issued a Notice of Hearing, setting a hearing for June 25, 2018, at 8:30 A.M. At the June 25, 2018, hearing, Complainant Christine Arnold testified on her own behalf and presented the testimony of Zeb Pearce. Respondent presented the testimony of Ernie Merrill, Member of Respondent. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers A - Q. The hearing did not conclude on June 25 and was adjourned to and completed on July 16, 2018.

6. The Investigator testified on behalf of the Registrar as to his communications with Complainants and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. He testified further that he performed a pre-hearing inspection on June 22, 2018, and that the Directive items in large part had still not been corrected. However, he stated that another contractor had apparently done some exterior painting that encompassed the exterior components of Complaint Item 1 and 8 that were included in the Amended Directive.

7. The Investigator further testified as to the various licenses of Respondent. The Registrar’s web site reflects that Respondent’s CR 11 Dual electrical license was issued on May 14, 2018, R39R Residential air conditioning and refrigeration license was issued on February 6, 2009, CR 37 Dual plumbing license was issued on April 30, 2014, and Class B General Residential license was issued on October 31, 2017.

8. Complainant Christine Arnold testified as the various items in the Amended Directive that had yet to be completed. She further testified as to the access to the residence she had granted to Respondent. She stated that the exterior painting that the Investigator had noted at the pre-hearing inspection had been required because she had received a notice form her HOA requiring that it be painted. She lastly stated that she had paid Respondent over $80,000.00 for the work performed.

9. Zeb Pearce of Home Envisions, LLC, testified on behalf of Complainants that he had been doing work at their residence and for a period of time was there every day and rarely saw Respondent’s employees at the residence. He also gave an estimate for repair of the items in the Directive. (Complainants’ Exhibit O).

10. Ernie Merrill testified on behalf of Respondent that he agreed with the Investigator that other contractors had performed work on some items in the Directive. However, he offered no testimony to dispute that the other Directive items still existed.

11. Mr. Merrill further testified that Respondent went to Complainant’s residence to perform corrective action around February 15, 2018, for the first time after the Complaint was filed and came out four to six times in total although he could not provide the other dates. He stated he informed the Registrar by letter dated April 11, 2018, that Respondent had been out four times and that he was having trouble gaining further access to the residence. As to why corrective work had not been completed during those four occasions, he stated that his workers were finding it difficult to work around Complainant and that she was interfering with their work. Mr. Merrill further testified that majority of plumbing, electrical, and HVAC work was done in the beginning of the project and that the remodeling work was done after the general contracting license was issued to Respondent on October 31, 2017.

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, Complainants 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.

...

12. Failure in any material respect to comply with this chapter.

...

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

...

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 of the Arizona Revised Statutes, A.R.S. § 32-1158(A) requires in pertinent part that any “[a]ny 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 the following information:

...

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 at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....”

7. Under A.R.S. § 32-1155(C), “[t]he registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

2. The contractor's work has been subject to neglect, modification or abnormal use....”

8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(1) for Respondent’s failure to perform the work in a professional and workmanlike manner. Respondent in large part did not contest the existence of the Amended Directive items, with the exception of the exterior components of Complaint Item 1 and 8 included in the Amended Directive which had since been painted by another contractor.

9. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with Chapter 10 of Title 32 of the Arizona Revised Statutes. It is apparent that the Citation had been issued because the Investigator was under the impression that Respondent had violated A.R.S. § 32-1158(A) due to the contract between the parties in excess of $1,000.00 not including a notice of the owner’s right to file a complaint with the Registrar. However, the contract presented to the Investigator did not include the back page of the contract, which in fact included such a notice. (Complainant’s Exhibit A). Accordingly, the Tribunal finds that the Respondent was in compliance in this regard.

10. A.R.S. § 32-1154(A)(16). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(16) for knowingly contracting beyond the scope of its licenses. Although Respondent held three other licenses, it was not in dispute that Respondent did not receive its Class B General Residential license until October 31, 2017. It was further not in dispute that Respondent submitted bids before October 31, 2017, for work for which a Class B General Residential license would have been required. (Complainant’s Exhibit A). Respondent argued that it had already applied for its Class B General Residential license at that time of the bids and therefore it had substantially complied with the licensing requirements. However, in submitting its application for a license, it therefore knew it did not have such a license at the time of the bid. “[A] knowing violation of the licensing requirements is ‘fatal’ to a claim of substantial compliance. Arizona Commercial Diving Services, Inc. v. Applied Diving Services, Inc., 212 Ariz. 208, 212 (App. 2006). Respondent cannot avail itself of a substantial compliance defense and therefore the Tribunal finds that Respondent had knowingly contracted beyond the scope of its licenses.

11. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22). Respondent argued that Complainants’ denial of Respondent’s access to the residence constituted a valid justification for the failure to complete the corrective work. However, Respondent admitted that it performed corrective work from four to six times after the Amended Directive was issued. Indeed, by letter dated April 11, 2018, Respondent informed the Registrar that it had been to the residence four times since the Amended Directive was issued and that there were only a few remaining items. The fact that Respondent had accessed the residence at least four times for corrective work would negate a finding that there was a lack of access. Further, the alleged difficulty of or the interference caused by the homeowner while the workers worked is insufficient to support a finding of a valid justification for not completing corrective work.

12. A.R.S. § 32-1155(C). Respondent argued that Respondent was not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the Registrar and therefore the Register lacked jurisdiction under A.R.S. § 32-1155(C)(1) to issue a Citation for failure to perform work in a professional and workmanlike manner. The written notice from the Registrar of January 26, 2018, to Complainant and Respondent indicated that Respondent was to be provided an opportunity to inspect the work within fifteen days after receiving a written notice from the Registrar. There was no evidence presented as to when Respondent received such a notice in order to determine the beginning of the applicable fifteen day period. However, even assuming that the notice was received within days of the January 26, 2018, date of the notice, the evidence reflected that there were communications between the parties regarding an inspection. (Complainant’s Exhibit E). Although the evidence reflected that there was some difficulty in scheduling Respondent’s opportunity to inspect the work within 15 days, the evidence was insufficient to show that Respondent was not in fact offered such an opportunity. Accordingly, the Tribunal finds that the Citation was properly issued in this regard.

13. Respondent also argued that because another contractor remedied some of the items in the Directive, the work was subject to “modification” and therefore the Registrar lacked jurisdiction under A.R.S. § 32-1155(C)(2) to issue a Citation for failure to perform work in a professional and workmanlike manner. There was no dispute that two items of the Directive regarding exterior painting were corrected by another contractor; Complainant explained she was required by her HOA to do so. As it relates to this case, the Tribunal interprets this statute to preclude a citation for only that portion of the work that was subject to modification and does not extend to that portion of the work that had not been modified. It is noted that the Citation was issued before the purported modification of the work. The Citation was issued on April 18, 2018, the day after the Investigator’s compliance inspection that made no mention of any modifications. A.R.S. § 32-1155(C)(2) precludes the issuance of a citation under certain circumstances, but is silent on its applicability if those circumstances occur after the issuance of a citation. Therefore, it is questionable whether A.R.S. § 32-1155(C)(2) even applies after a citation has been issued or can create a jurisdictional defense. Even if it did apply, the Tribunal cannot discern any reason why work that has been subject to modification, whether before or after the issuance of a citation, should have any bearing on work that has not been subject to modification or any bearing on the Register’s ability to proceed with violations related to the latter. Therefore, the Tribunal finds that the Citation was properly issued in this regard and that the Register was permitted to proceed against Respondent for violations related to work that was not subject to modification by others.

14. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(16), 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, Minutemen Home Services, LLC’s, License Numbers 316190, 242804, 290005, and 251474 are suspended for two 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 6, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors