ALJDEC decisions subject to certification as final

2018A-900-CHC-ROC · Registrar of Contractors · 2018-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory John Chapman,

COMPLAINANT,

v.

A and W Remodeling LLC ,

License No: 211961

RESPONDENT.

No. 2018A-900-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 10, 2018.

APPEARANCES: Greg Chapman, Complainant, Cecilia Lam, Complainant

Witness, Richard Ward, Respondent, Matt Gunstra, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDING OF FACT

Respondent A and W Remodeling LLC. (Respondent) is the holder of License No. 211961 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 20, 2017, Gregory John Chapman (Complainant) entered into a contract with Respondent to perform a kitchen remodel at Complainant’s residence. On or about February 26, 2018, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work.

The Registrar assigned the complaint to Investigator Matt Gunstra. On or about March 21, 2018, Investigator Gunstra conducted a jobsite inspection [JSI] and determined

Contractor installed over [the] range [an] outlet for [a] microwave wired to 250v. The configured outlet destroyed 120v rated microwave. Investigator’s Observation: Respondent returned recently and allegedly repaired the outlet. I tested the outlet and it appears to be wired correctly. Complainant found a sales receipt for a newly purchased microwave on his door of the same model that is installed. It appears Respondent intends to replace the damaged unit but he has not communicated as such to me. It appears poor work by Respondent damaged Complainant's microwave which is poor work. Governing Rule: Workmanship Rule: R4-9-108. [Emphasis added].

A City of Scottsdale stamped permit with drawings was viewed [the permit was found in the Complainant’s door along with the Costco microwave purchase receipt. “Upon arrival I found that Respondent has obtained a permit since the complaint was filed. Permit #240882. Complainant does not believe any inspections have been performed by the city.”

No compliance inspection was conducted. On April 2, 2018, Investigator Gunstra issued a Written Directive to Respondent that provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 4/19/18. You are hereby directed to remedy the following violations by the appropriate means:

Contractor installed over range outlet for microwave wired to 250v. The configured outlet destroyed 120v rated microwave. Directive: Installed microwave appears to be damaged by incorrect electrical wiring. Respondent shall correct by appropriate means.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On April 20, 2018, the Registrar issued a Citation against Respondent, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply...without valid justification within a reasonable period of time after receiving a written directive from the registrar.

A hearing was held on July, 10, 2018.

Investigator Gunstra testified that at the JSI he tested the dedicated microwave outlet. He was made aware that the Respondent had the offending outlet re-wired prior to the JSI and it appeared to be wired correctly. He inspected a sales receipt provided by the Complainant which was in Complainant’s door before the JSI of sales receipt for a newly purchased microwave. He said the microwave purchase receipt was from Costco for the same model that was installed as of the time of the JSI which Complainant claims was damaged by an incorrectly wired outlet [which outlet had been repaired prior to the JSI].

Richard Ward, Qualifying Party, testified for the Respondent that he had wired the inside of the outlet, but did not wire the outlet to breaker. He admitted he did not check the voltage on the wiring of the dedicated outlet after he installed because when the outlet was installed, all power was off. Mr. Ward testified that the wiring was corrected before the JSI was conducted by Turn-It-On”- a licensed contractor hired by the Respondent. He testified that a City of Scottsdale stamped permit was obtained before the JSI, [a copy of the permit was found in the Complainant’s door at the time of the JSI] but final inspection did not occur until after the Directive’s deadline. Ultimately, inspection was obtained and a permit issued for the work. Mr. Ward testified that it was not the Respondent who installed the microwave on this project. He said that “KIPP”, a contractor to the Complainant from Home Depo installed the initial microwave. Mr. Ward testified that even though Respondent did not install the microwave, Mr. Ward decided to just buy a replacement microwave in order to just satisfy the customer and get the job done. Mr. Ward made efforts to gain permission for access to install the microwave before the Directive’s deadline, but Complainant’s co-home owner, Ms. Cecilia Lam, refused to permit Respondent onto the job site before the deadline for the Directive ran.

Ms. Cecilia Lam testified that she is co-owner of the Complainant’s residence. She stated that when she tried using the subject microwave for the first time, it caused “a large banging sound and the unit would not work.” She said Complainant, Mr. Chapman, tested the wall outlet with a voltmeter and it registered at 255V. The microwave is a 110V device. She testified that the Respondent repaired the microwave’s dedicated wall outlet prior the JSI. On April 15, 2018, Respondent texted Ms. Lam wanting to install a replacement microwave immediately. She indicated that she required more advanced notice. It was not until April 19, 2018 (the Directive’s dead line date), that Complainant responded to the Respondent stating that “I have scheduled you for April 22, 2018 between 1:00PM and 2:00PM.” The Respondent was not allowed to install the replacement microwave until April 22, 2018. Ms. Lam confirmed the replacement microwave was installed by the Respondent April 22, 2018.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 29, 2018. Such prior License record is neither aggravating nor mitigating.

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).

In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person's behalf has committed one or more of the following acts in determining the gravity of the cited violation:....

8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner....

11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person.

The credible evidence presented at hearing established that at the time of the Complaint there was an item of Complainant’s project that needed to be completed. Specifically, replace a microwave damaged by Respondent’s wiring an outlet at 250 Volts rather than the 110Volt that was required. There is no direct evidence in this case as to the cause of the damage to the microwave or even the nature or extent of damage, if any. The evidence of record showed that there was a temporal relationship between Ms. Lam first operating the microwave and it failing to function [accompanied by a loud banging noise]. However, such testimony, in and of itself, is insufficient to prove the cause of the microwave damage was from Respondent’s workmanship rather than other causes, such as manufacture defect.

Notwithstanding, Respondent admits it did incorrectly wire the microwave’s dedicated line for 250 volts rather than the required 110 Volt outlet. Mr. Gunstra’s testimony is uncontested that such conduct was below workmanship standards. It has not been established the Respondent “caused loss or injury to any person” as contemplated by A.A.C. R4-9-131(11).

Regarding the improper wiring of the microwave dedicated outlet, by a preponderance of the evidence, Complainant did establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

It is uncontested that prior even to the JSI, Respondent had responded to and corrected the improperly wired microwave’s dedicated outlet. It is uncontested that Investigator Gunstra found the wiring to be completely correct at the time of the JSI. Notwithstanding that the Respondent established that it was not the Respondent who installed the microwave, Respondent purchased a replacement microwave for install at the Complainants residence. Respondent made fair and reasonable efforts to install the microwave that it purchased before the Directive’s deadline, but was denied access to do the work until after the deadline. The replacement microwave was installed on April 22, 2018, after the deadline.

Respondent did not violate A.R.S. § 32-1154(A)(3) because Respondent was not afforded a reasonable opportunity to remedy the violations identified in the Directive. Respondents should be afforded a reasonable opportunity to cure an infraction before discipline will be imposed. Denial of access is a valid justification for failing to comply with the Directive. Where a contractor is denied access to comply with the written Directive, there is no violation of A.R.S. § 32-1154(A)(3)

Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.

.

BB Ewing Property Management v. Khart Management LLC No. 2015-1168(ALJ Dec. 15:19–25). See also, Registrar of Contractor’s Substantive Policy Statement 2017.01

Complainant has failed to meet its burden of proof, by a preponderance of the evidence, to establish that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on or before the effective date of the final Order in this matter, A and W Remodeling LLC., License No: 211961 must pay to the Registrar of Contractors in certified funds a civil penalty of $250.00.

IT IS FURTHER RECOMMENDED, 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 civil penalty.

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, July 29, 2018

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors