ALJDEC decisions subject to certification as final

2018A-353-CHC-ROC · Registrar of Contractors · 2018-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nguyen Kim Chuong, Xuyen Thi Le, and Stephen Wirst,

COMPLAINANTS,

v.

Modern Construction LLC,

License Nos. KB-2.240015-D

C-37.284570-C.

RESPONDENT.

No. 2018A-353-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 2, 2018, at 8:30 a.m.

APPEARANCES: Xuyen Thi Le (“Ms. Le”) and Stephen Wirst (“Mr. Wirst”) (collectively “Complainants”) appeared on their own behalf; Modern Construction LLC (“Respondent”) appeared through its qualifying party/member, Hien Quoc Tran.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the Registrar of Contractors’ (“the Registrar’s”) public website, on or about January 31, 2008, the Registrar issued License No. KB-2.240015-D for dual residential and small commercial contracting to Respondent. On or about May 17, 2013, the Registrar issued License No. C-37.284570-C for commercial plumbing to Respondent.

On or about January 24, 2018, Nguyen Kim Chuong (“Ms. Chuong”) filed a complaint with the Registrar against Respondent, alleging that it had performed poor work in building a room addition at her house at 3608 W. Morelos St., Chandler, Arizona 85226. Ms. Le’s son, Duc Quong Vuong (“Mr. Vuong”), filled out the complaint for Ms. Chuong.

According to the complaint, Respondent had been paid $48,575 of the $47,000 contract price. The contract that was attached to the complaint was on Respondent’s letterhead and provided that it would construct a 425.7 square foot master bedroom and master bathroom and a 272 square foot patio for $57,000 and “Base on 425.7 sqf master bath room X $ 105 p/sqf+ $44,698.5 + $ 5,000.00 Patio ) = $49,698.5.” The contract did not include Respondent’s license number, the property owner’s name, the amount of any progress payments, although it appears progress payments were made, notice of the property owner’s right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B), or the Registrar’s telephone number and website address.

The Registrar assigned the complaint to its Investigator Steve Nelsen for investigation. On February 15, 2018, Investigator Nelsen performed a jobsite inspection, which Respondent did not attend. On February 14, 2018, Investigator Nelsen issued a Directive that required Respondent to correct four of Complainants’ items of complaint, in relevant part as follows:

1. Master bedroom window leaking (Ensure proper installation according to manufacturer’s recommendations).

2. Double door doesn’t touch floor, no keys (Ensure door installed per manufacturer’s recommendations).

3. Excessive lippage on tile (Correct excess lippage in master bedroom , master bedroom closet and shower walls. Also correct hump in transition into master bedroom).

4. The concrete cover foundation is very bad for repair, but no response. (Correct improper height of clean outs on front of home)

The deadline for Respondent to comply with the Directive was March 5, 2018, at 5:00 p.m.

On March 5, 2018, after Investigator Nelsen did not hear anything from Respondent and Complainants said that Respondent did not do anything to comply with the directive, Investigator Nelsen referred the complaint to the Registrar’s Legal Department. On March 5, 2018, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A), and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/member Hien Quoc Tran (“Mr. Tran”) filed a timely written answer to the Citation, denying any statutory violations. Mr. Tran stated that he would have attended the jobsite inspection and that Respondent would have complied with the Directive, except that he did not receive notice of the jobsite inspection or the Directive. Mr. Tran explained that when he renewed Respondent’s license on January 25, 2018, he thought that he had changed Respondent’s address of record, but later discovered that he had changed only the billing address. When he recently updated his email address with the Registrar, he learned about the complaint. Mr. Tran indicated that he intended to rectify Ms. Le’s complaint.

The Registrar referred Complainants’ complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on May 1, 2018. Ms. Le and Mr. Wirst testified. Respondent presented Mr. Tran’s testimony. Investigator Nelsen also testified.

Ms. Le testified that Ms. Chuong owns the house. Ms. Le is Ms. Chuong’s sister. Mr. Wirst is Ms. Le’s husband. Ms. Le testified that Ms. Chuong was living in Houston, Texas and Ms. Le and her family were living in the house in Chandler. Ms. Le testified that the room was added to the house to accommodate her family moving in and that she paid for the room addition.

Investigator Nelsen testified that at the jobsite inspection, Ms. Le and Mr. Wirst showed him a video that showed that the window had a significant leak. Investigator Nelsen testified that in an attempt to mitigate the leak, caulking had been applied to the window. Investigator Nelsen testified that in his opinion, the caulk did not affect Respondent’s responsibility for the window under A.R.S. § 32-1155(C)(2).

Investigator Nelsen testified that the window had been damaged during installation because it was affixed to the frame by nails, rather than screws, which was not a normal installation method. Investigator Nelsen testified that he was not sure if the window could be repaired and that it might need to be replaced.

Investigator Nelsen testified that Respondent installed the double doors so that daylight was showing at the threshold. Investigator Nelson testified that Complainants had installed an additional threshold seal to mitigate the poor installation, but that daylight was still showing under the door. Investigator Nelson testified that in his opinion, the threshold seal did not affect Respondent’s responsibility for the poor installation of the double doors under A.R.S. § 32-1155(C)(2).

Investigator Nelsen testified that the Registrar’s workmanship standards require that lippage on tile be less than 1/32”, or the width of a credit card. Investigator Nelson testified that the tile floor that Respondent installed had excess lippage.

Investigator Nelsen testified that, in addition, there was a significant, visible hump in the floor leading to the master bedroom that required correction. Inspector Nelsen testified that the Registrar’s workmanship standards required that a floor should be flat within 1⁄4” in 12’.

Investigator Nelsen testified that the hump may have been due to a preexisting condition. In laying the tile over the hump, however, Respondent had accepted the surface. In Inspector Nelsen’s opinion, the hump presented a tripping hazard.

Investigator Nelsen testified that the concrete appeared to have been installed correctly. However, the cleanouts in front of the home were not set to the proper elevation and presented a tripping hazard.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website on this date. Respondent’s licenses were current and in good standing. The record does not show any prior discipline against either license, although License No. KB-2.240015-D was administratively suspended between January 14, 2010, and January 21, 2010, for lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish cause to discipline Respondent’s licenses by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

This was a residential room addition that required Respondent to use its License No. KB-2.240015-D, not its commercial plumbing license No. C-17.284570-C. The commercial license should not be disciplined as a result of any statutory violations established in this case, although in due course discipline against Respondent’s dual residential and small commercial contracting License No. KB-2.240015-D might lead to discipline against Respondent’s other licenses.

The record in this matter establishes that Respondent’s contract with Complainants did not contain all the terms required by A.R.S. § 32-1158(A). Cause therefore exists to revoke or suspend Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(12).

Mr. Tran did not dispute the deficiencies noted on the February 15, 2018 Directive and during Investigator Nelsen’s testimony. Therefore, Complainants established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Mr. Tran also acknowledged that Respondent did not comply with the Registrar’s February 15, 2018 directive. Therefore, Complainants established cause to revoke or suspend Respondent’s licenses under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, as a result of Complainants Nguyen Kim Chuong, Xuyen Thi Le, and Stephen Wirst’s complaint in Case No. 2017-353, Respondent Modern Construction LLC’s License No. KB-2.240015-D shall be suspended for three business days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 Registrar’s 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.

It is further recommended that on or before thirty calendar days after the effective date of the order, Respondent shall provide satisfactory written proof to the Registrar that it has revised its proposal form and/or contract form to include all of the elements required by A.R.S. § 32-1158(A). If Respondent fails to timely provide such written proof, its licenses shall be suspended until it provides such proof.

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, May 7, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors