ALJDEC decisions subject to certification as final

2018A-904-CHC-ROC · Registrar of Contractors · 2018-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lee Ann Clemmer Russell,

COMPLAINANT,

v.

GGCS LLC dba,

Pinal Co Re-Bath,

License No: 311068, 306888

RESPONDENT.

No. 2018A-904-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 3, 2018

APPEARANCES: Lee Ann Clemmer Russell, Complainant, Leslie Dale Russell,

Spouse of Complainant, Chris Deck, Respondent and Qualifying Party, John

Smith, Registrar’s Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, GGCS LLC d/b/a, Pinal Co Re-Bath, (hereinafter, Re-Bath) is the holder of CR61 Arizona Contractors license numbers 311068 and 306888 issued by the Arizona Registrar of Contractors (ROC).

On or about May 5, 2018, Complainant Lee Ann Clemmer Russell, (hereinafter, “Russell”) entered into a contract with Respondent to remodel the Clemmer residence’s Master Bathroom.

On or about, February 26, 2018, the ROC received a Complaint against Re-Bath from Complainant alleging Re-Bath abandonment and poor work.

The ROC assigned the complaint to Investigator John Smith. On or about March 30, 2018, Inspector Smith conducted a jobsite inspection (hereinafter, “JSI”). The JSI investigation disclosed:

This project was remodeling the master bathroom. The original shower location is now a closet. The original tub location is now a shower. The large picture window that was over the tub is now a small window over the shower. No permit was obtained for this project. A Permit will need to be obtained for this project prior to corrective action of poor workmanship allegations. ARS 32-1154 A 2 "...disregard of plans or specifications or any building codes..."

The respondent did not stay for the duration of the inspection.

....

Complaint Item 2: Work was subpar. Walls look like different textures and uneven. This was described by the complainant to be the drywall texture on the walls above the shower panels and around the window. Investigator’s Observation: Substantiated. The texture above the shower panels is rough and does not match the rest of the texture in the bathroom well. The respondent stated "...it looks like crap." Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 3: Shower door leaks while showering and getting worse.

Investigator’s Observation: Substantiated. The respondent stated the sweep on the bottom of the shower door should be longer. Also the top of the curb slopes away from the shower. The slope is 3/16" on 6". Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 4: Shower doors are not level. This was described by the complainant to be the shower door hitting the stationary panel at the bottom.

Investigator’s Observation: Substantiated. The shower door does hit the stationary panel when closing the door. When the door gets past the sticking point it causes the glass to vibrate. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 5: Shower pan uneven, as you step in the stone makes a cracking sound. Investigator’s Observation: Substantiated. There is some flex to the shower pan when walking on it. There is also a hollow sound when tapping on the shower pan. The respondent stated the shower pan is a pre-casted styrofoam pan that is glued to the concrete. The stone panels are then glued to the styrofoam pan. There is no deck mud above or below the styrofoam pan. The respondent also stated that is how he was trained to do by Rebath, but he does not agree with that method. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 6: (Line 6 and 7 from the complaint form) Vanity in bath was [not] neven (sic) replaced. .... Investigator’s Observation: Substantiated. Both parties agreed the vanity and top were to be installed, and that it is currently not done. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108 ....

Complaint Item 10: Shower dial and hook-ups are reversed. H is C and C is H. Investigator’s Observation: Substantiated. This is a two lever shower valve. The back lever controls the water volume. The front lever controls the temperature. The direction of the lever is color coded by the manufacturer with blue and red. With the lever all the way to the blue, the water comes out hot. With the lever all the way to the red, the water comes out cold. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 11: Top of storage area is not even cleaned nor has seal on top. This was described by the complainant to be the unfinished drywall on the top of the closet. Investigator’s Observation: Substantiated. The drywall and cornerbead on the top of the closet is not finished with taping, drywall compound, or paint. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108....

Complaint Item 14: Incorrect grout was used on surround tile. It had to be ripped out due to it being all scratched up. In doing so the wall was all torn and the tile doesn't lay flat now. Mr. Deck tried to replace. This was described by the complainants to be lippage and uneven width grout lines in the decorative wall tiles. Investigator’s Observation: Substantiated. There are several areas of lippage exceeding the 1/32" allowed by Arizona Workmanship Standards. Also the grout lines vary in width from 1/16" to 1/4". Arizona Workmanship Standards state that grout lines should be even width. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108....

Complaint Item 19: The stone sheet above the shower head is chipped.

Investigator’s Observation: Substantiated. There is a chip in the stone at the top of the panel, above the shower valve.

Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 20: The trim is missing a cap and not properly sealed.

Investigator’s Observation: Substantiated. The trim pieces installed around the perimeter of the stone panels are missing a corner piece. The trim pieces are loose and not sealed to the wall or the stone panels. There are gaps between trim pieces and uneven connections/corners.

Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

Complaint Item 21: The area around the window in the shower is not properly sealed. This was described by the complainant to be the poorly finished drywall around the window. Investigator’s Observation: Substantiated. The drywall around the window is not finished in the corners, or caulked to the window. Governing Rule: Workmanship Rule: 32-1154(A) (3), namely R4-9-108

Complaint Item 23: The shower is piecemealed together and shows gaps in the stone. Investigator’s Observation: Substantiated. There are visible gaps between sections of the stone. Mostly on both sides of the curb.

Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108....

Complaint Item 26: ...space between the shower glass and the vanity. The caulking is incomplete on the glass and the floor tile is not sealed and cleaned... This was described by the complainants to also include missing drywall that leaves the framing exposed. Investigator’s Observation: Substantiated. There is still construction residue on the floor tiles in this space. The glass is not caulked to the mounting channel in this area, all other areas are caulked. There is also missing drywall on the wall leaving the wall framing exposed in this area. Governing Rule: Workmanship Rule: 32-1154 A 3, namely R4-9-108

On April 2, 2018, Investigator Smith issued a Written Directive to Respondent containing a Corrective Work Order (CWO) 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 April 23, 2018. 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. If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

You are hereby directed to remedy the following violations by the appropriate means:

1. “Work was subpar. Walls look like different textures and uneven.” This was described by the complainant to be the drywall texture on the walls above the shower panels and around the window.

2. “Shower door leaks while showering and getting worse.” This includes the curb sloping away from the shower.

3. “Shower doors are not level.” This was described by the complainant to be the shower door hitting the stationary panel at the bottom.

4. “Shower doors are not level.” This was described by the complainant to be the shower door hitting the stationary panel at the bottom.

5. “Vanity in bath was (not) neven (sic) replaced. Mr. Deck said it was ordered and ready for ... Mr. Deck informed us to find the granite we wanted installed and he would in....”

6. “Shower dial and hook-ups are reversed. H is C and C is H”

7. “Top of storage area is not even cleaned nor has seal on top.” This was described by the complainant to be the unfinished drywall on the top of the closet.

8. “...the tile doesn't lay flat now...” This was described by the complainants to be lippage and uneven width grout lines in the decorative wall tiles

9. “The stone sheet above the shower head is chipped.”

10. “The trim is missing a cap and not properly sealed.”

11. “The area around the window in the shower is not properly sealed.” This was described by the complainant to be the poorly finished drywall around the window.

12. “The shower is piecemealed together and shows gaps in the stone.”

13. “...space between the shower glass and the vanity. The caulking is incomplete on the glass and the floor tile is not sealed and cleaned...” This was described by the complainants to also include missing drywall that leaves the framing exposed.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed.

Following the issuance of the written directive, on April 24, 2018, Investigator Smith conducted a Compliance Inspection on this job site. The Complainant was present but no one appeared for Re-Bath for the inspection. Investigator Smith’s findings were:

Compliance Findings: The directive has not been complied with. All work is in the same condition as during the original inspection.

First Item from Directive: 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. If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator. This Item: not complied with. This project was remodeling the master bathroom. The original shower location is now a closet. The original tub location is now a shower. The large picture window that was over the tub is now a small window over the shower. No permit has been obtained for this project.

Item 1 from Directive: “Work was subpar. Walls look like different textures and uneven.” This was described by the complainant to be the drywall texture on the walls above the shower panels and around the window.

This Item: not complied with. The texture above the shower panels is rough and does not match the rest of the texture in the bathroom well. During the original jobsite inspection the respondent stated "...it looks like crap."

Item 2 from Directive: “Shower door leaks while showering and getting worse.” This includes the curb sloping away from the shower. This item: not complied with. The respondent stated the sweep on the bottom of the shower door should be longer. Also the top of the curb slopes away from the shower. The slope is 3/16" on 6".

Item 3 from Directive: “Shower doors are not level.” This was described by the complainant to be the shower door hitting the stationary panel at the bottom. This Item: not complied with. The shower door does hit the stationary panel when closing the door. When the door gets past the sticking point it causes the glass to vibrate.

Item 4 from Directive: "Shower pan uneven, as you step in the stone makes a cracking sound." This Item: not complied with. There is some flex to the shower pan when walking on it. There is also a hollow sound when tapping on the shower pan. The respondent stated the shower pan is a precasted styrofoam pan that is glued to the concrete. The stone panels are then glued to the styrofoam pan. There is no deck mud above or below the styrofoam pan. Item 5 from Directive: “Vanity in bath was neven replaced. Mr. Deck said it was ordered and ready for ... Mr. Deck informed us to find the granite we wanted installed and he would in....” This Item: not complied with. Both parties agreed the vanity and top were to be installed, and that it is currently not done.

Item 6 from Directive: “Shower dial and hook-ups are reversed. H is C and C is H” . This Item: not complied with. This is a two lever shower valve. The back lever controls the water volume. The front lever controls the temperature. The direction of the lever is color coded by the manufacturer with blue and red. With the lever all the way to the blue, the water comes out hot. With the lever all the way to the red, the water comes out cold.

Item 7 from Directive: “Top of storage area is not even cleaned nor has seal on top.” This was described by the complainant to be the unfinished drywall on the top of the closet. This Item: not complied with. The drywall and cornerbead on the top of the closet is not finished with taping, drywall compound, or paint.

Item 8 from Directive: “...the tile doesn't lay flat now...” This was described by the complainants to be lippage and uneven width grout lines in the decorative wall tiles This Item: not complied with. There are several areas of lippage exceeding the 1/32" allowed by Arizona Workmanship Standards.

Also the grout lines vary in width from 1/16" to 1/4". Arizona Workmanship Standards state that grout lines should be even width.

Item 9 from Directive: “The stone sheet above the shower head is chipped.”

This Item: not complied with. There is a chip in the stone at the top of the panel, above the shower valve.

Item 10 from Directive: “The trim is missing a cap and not properly sealed.”

This Item: not complied with. The trim pieces installed around the perimeter of the stone panels are missing a corner piece. The trim pieces are loose and not sealed to the wall or the stone panels. There are gaps between trim pieces and uneven connections/corners.

Item 11 from Directive: “The area around the window in the shower is not properly sealed.” This was described by the complainant to be the poorly finished drywall around the window. This Item: not complied with. The drywall around the window is not finished in the corners, or caulked to the window.

Item 12 from Directive: “The shower is piecemealed together and shows gaps in the stone.” This Item: not complied with. There are visible gaps between sections of the stone. Mostly on both sides of the curb.

Item 13 from Directive: “...space between the shower glass and the vanity. The caulking is incomplete on the glass and the floor tile is not sealed and cleaned...” This was described by the complainants to also include missing drywall that leaves the framing exposed. This Item: not complied with. There is still construction residue on the floor tiles in this space. The glass is not caulked to the mounting channel in this area, all other areas are caulked. There is also missing drywall on the wall leaving the wall framing exposed in this area.

On April 25, 2018, ROC issued a Citation against Respondent, charging possible violations of:

A.R.S. § 32-1154(A)(2);

Violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the

Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3);

Violation of A.R.S. § 32-1154(A)(12);

Violation of A.R.S. § 32-1154(A)(16); and

Violation of A.R.S. § 32-1154(A)(22)

A hearing regarding the merits of the Complaint and Citation was held on August 3, 2018 before the Office of Admistrtive Hearings, an independent agency.

Investigator Smith testified consistent with his job site inspection notes that no permit had been obtained prior to or after the job was commenced, that there were 13 items of below standard workmanship noted and that Re-Bath’s qualifying party, that Mr. Chris Deck, admitted that the plumbing work done on the job was done by himself. Investigator Smith testified that according to the ROC records, Re-Bath was not and is not a licensed plumbing contractor in Arizona and thus Mr. Deck had admitted to Inspector Smith that Respondent was working outside the scope of its license.

Mr. Smith testified that at his compliance inspection of April 24, 2018, (conducted after the deadline for compliance in the CWO), he found none of the items listed in the CWO had been completed or even attempted.

Investigator Smith also testified that his review of the contract between Re-Bath and Russell, the contract amount and the deposit payment both exceeded one thousand dollar. In the written contract he noted that there is no estimated date of completion of all work to be performed under the contract was appearing.

Complainant Russell testified that he entered into the written agreement with Re-bath to remodel his residence’s bathroom. Mr. Russell indicated that he made two payments, one of $5,298.10 and another of $7,000.00 to Pinal Co. Re-Bath as payee Mrs. Russell testified that now, because work was undertaken without a permit, the City Permit Department has advised that the entire job must be “reduced down to its studs” before a permit would be considered.

Mr. Leslie Dale Russell, spouse of Complainant, testified that he was present for the JSI, that Mr. Deck appeared at that time - but without warning or explanation - Mr. Deck walled off the property. The JSI was the last time that Mr. Deck or anyone from Re-Bath was on the job site. He stated that Mr. Deck did contact him on June 29, 2018 by telephone and Mr. Deck had asked if “anyone had done more work” on the job. Of course, he indicated, no one had been back to his home since the JSI.

Mr. Deck testified that he is the qualifying party for the Respondent. He testified that he was, previous to the hearing and on the date of the contract with Russell, a franchisee of Re-Bath, LLC, a regional franchisor with offices located in Phoenix, Arizona. Mr. Deck testified that after he began work on the Russell project, he terminated his franchise agreement with Re-Bath, LLC. Mr. Deck’s understands his Franchise Agreement with Re-Bath, LLC provides that the franchisor will provide all warranty work, follow-up and repair services for jobs the Respondent worked as a franchisee, including but not limited to the Russell job. Mr. Deck pointed to his franchisor as the responsible party having the duty under his franchise contract to perform the services directed in the CWO.

Mr. Deck, as qualifying party for the Respondent, admitted at hearing that “all of the charges are accurate” and “I agree with all of the charges.” Mr. Deck admitted at hearing that no permit was requested or obtained for this job. Mr. Deck admitted on the record that he did not hire a sub-contractor on the Russell job to provide plumbing contracting services, but instead Mr. Deck admitted that he had performed the plumbing work for the Russell job himself.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 16, 2018. Such prior License record reflects that Respondent’s Licenses 311068 and 306888 were was first issued January 17, 2017 and August 2, 2016, respectively. The license for 306888 was administratively suspended for lack of bond on August 1, 2018 and remains suspended.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant Russell 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).

The credible evidence presented at hearing established that the Respondent did proceed with its contracted work without first [or ever] having obtained the required City Building Permits for work on the project. By a preponderance of the evidence, the Respondent having admitted to the charge, Complainant has proven that Respondent violated A.R.S. § 32-1154(A)(2).

The Respondent having admitted to the charge and the evidence otherwise have shown by a preponderance, Complainant has proven that Respondent violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

By a preponderance of the evidence and by Respondent’s admission to the charge, Complainant has proven that Respondent’s contract, in an amount over $1,000.00, failed to state the commencement date or the completion date of the project as required by. § 32-1158(A). Complainant has proven, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(12).

The credible evidence presented at hearing and by the Respondent’s admission to the charge established by a preponderance that the Respondent performed plumbing contracting services for Russell on this job. Taking judicial notice of the ROC’s records, the Respondent is was not at the time of the parties’ contract a licensed plumbing contractor nor was it a licensed contractor when the Respondent performed the plumbing contractor’s work on this job. The Complainant has thus met its burden to prove Respondent knowingly contracted beyond the scope of the license or licenses of the licensee and thereby violated A.R.S. § 32-1154(A)(16).

The credible evidence presented at hearing established that at the time of the Complaint there were items of Complainant’s project that needed to be completed. Specifically, obtaining a building permit and the 13 items listed in the CWO in this case. After having walked off the site in the middle of the JSI on March 30, 2018, neither the Respondent nor anyone from Respondent’s company has returned to the jobsite and no further work has been performed under the contract by the Respondent.

Respondent’s argument that its franchisor is contractually bound to have performed the work directed in the CWO is not persuasive. That its franchisor may be contractually bound to the Respondent to pick up where Respondent left off, the duty to perform runs only to the parties to the contract. ROC is not a party to the franchise agreement. The duties and requirements of licensed contractors are binding upon the contractor itself, not others. Respondent cannot shield its conduct through such devices and then claim the duties and requirements imposed by the legislature are somehow transferred to another. Respondent cites no case or other authority for its somewhat novel proposition. The contractual relationship between the franchisor and the Respondent is not a reasonable justification for failing to comply with the CWO by the CWO’s indicated deadline.

Therefore, the Complainant has proven, by a preponderance of the evidence that the Respondent violated A.R.S. § 32-1154(A)(22) by its failure to take appropriate corrective action to comply with the CWO without valid justification within a reasonable period of time.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall revoke GGCS LLC d/b/a, Pinal Co Re-Bath’s License Numbers 311068 and 306888.

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, August 16, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors