ALJDEC decisions subject to certification as final

2019A-00031-CHC-ROC · Registrar of Contractors · 2019-08-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2019 APPEARANCES: Complainant Brandon David Radcliffe appeared on behalf of himself. Kyle Jay Carr appeared on behalf of TierOne Renovations, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On June 28, 2019, the Registrar of Contractors, (Registrar), issued a Notice of Hearing setting the above-captioned matter for hearing on August 2, 2019, by the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent TierOne Renovations, LLC (TierOne”), holds license 318951 issued by the Registrar. TierOne’s qualifying party is Kyle Jay Carr. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, the Registrar alleges that TierOne may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3),(A)(9), (A)(12), and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke TierOne’s license.[1] 5. In July of 2015, Mr. Radcliffe and TierOne entered into an agreement wherein TierOne would remodel Mr. Radcliffe’s home for $40,000. 6. TierOne did not provide Mr. Radcliffe with a contract which advised him of his right to file a complaint with the Registrar against TierOne for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B). TierOne did not provide Mr. Radcliffe with a contract which provided the Registrar’s telephone number or website address. 7. TierOne began work on May 25, 2018. 8. TierOne used an unlicensed contractor to perform drywall work. 9. TierOne stopped work on Mr. Radcliffe’s home on August 24, 2018. 10. On December 28, 2018, the Registrar received a Complaint from Mr. Radcliffe alleging that TierOne performed poor work in connection with a residential remodeling construction project. 11. On January 30, 2019, Registrar Investigator Randy Morris, (Investigator Morris), conducted a job-site inspection in response to the Complaint. 12. On February 25, 2019, Investigator Morris issued a Directive to TierOne. The February 25, 2019 Directive provides, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: “Poor drywall work”

Verified drywall texture splatter at one wing wall in the kitchen and one corner bead at the second story corner. Allegation is substantiated.

Complaint Item 6: Counter top fabrication was one very poorly”

Verified that the kitchen counter top installation did not meet the Minimum Workmanship Standards, the vein of the granite is run perpendicular to each other at the counter tops to the right of the sink and the kitchen island counter top is not level. Allegation is substantiated.

13. Through the Directive, the Registrar ordered TierOne to remedy the alleged violations by appropriate means no later than March 14, 2019. 14. On or about March 9, 2019, Mr. Radcliffe filed an addendum to the Complaint. 15. Mr. Radcliff did not allow TierOne to correct Complaint Item 1 because he did not trust Mr. Radcliffe to use a licensed contractor. The subcontractor that TierOne used to install the original drywall was not licensed. 16. On April 8, 2019, Investigator Morris conducted a second jobsite inspection regarding the addendum. 17. On May 14, 2019, Investigator Morris issued a Directive to TierOne. The May 31, 2019 Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 11: “Our contractor did not have their sub- contractor (who is not licensed) put a footing on the exterior wall that was moved. I would like to have the AZROC confirm whether a footing is required on all exterior walls. Pictures 9, & 11 show the exterior wall when I asked our contractor why it looks like that and doesn’t not look the same as the rest of the house. Pictures 12 & 13 show it after they at least made it look like the rest of the house but still does not have a footing. They just had the stucco guy make it look like it has a footing.”

Investigator’s Observation: The Respondent stated during the addendum job site inspection that there was no footing or stem wall installed. The Respondent stated that a glue lam beam was installed and supported by 2 end posts. When asked if the structure had been engineered, the Respondent stated “No”. When ask if a permit has been obtained and drawings approved by the City of Gilbert Building Dept., the Respondent again stated “No” The allegation has been substantiated. The Respondent shall be responsible for obtaining a permit from the local authority having jurisdiction and final inspection approval by the same.

Governing Rule: A.R.S. § 32-1154 (A)(2) Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that 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.

Complaint Item 12: “The install on the Luxury Vinyl flooring is poorly done. There are multiple spots where the flooring has come unattached due to the flooring not being leveled properly. I am requesting that the pieces that have come unhooked be replaced and the places where the flooring is not leveled needs to be leveled. Picture 16 shows an example of the piece of flooring that has come unhooked. They are left the job incomplete as the flooring sub-contractor took off the trim on our existing vanities and never replaced them. I would like those to be replaced. Picture 14 and 15 show both of the upstairs vanities left without trim.”

Investigator’s Observation: Verified that the vinyl flooring now has excessive lippage in several locations throughout the first floor. Allegation is substantiated.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

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

You are advised that if your license is suspended for administrative reasons1 or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license ROC 318951 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

18. Through the Directive, the Registrar ordered TierOne to remedy the alleged violations by appropriate means no later than May 31, 2019. 19. TierOne did not remedy the alleged violations in the May 14 directive by the May 31, 2019 deadline. 20. At hearing, Mr. Carr asserted that Complainant denied access to his home to complete the repairs listed in the Directive. TierOne also argued that he was not involved with the plumbing and electrical work. Mr. Carr also testified that Mr. Radcliffe would allow his flooring contractor in his home. Mr. Carr testified that Mr. Radcliffe did not want any of his subcontractors coming back to his home. 21. Mr. Radcliffe stated that he did not refuse to allow TierOne’s flooring contractor to perform work in his home. Mr. Radcliffe explained that he stated that he wanted to speak to Mr. Carr first before allowing the flooring contractor to come in. Mr. Radcliffe explained that after he finished speaking with Mr. Carr, the flooring contractor left the home. 22. Investigator Morris explained that Mr. Radcliffe did not allow TierOne to correct complaint Item #2 of the February 25, 2019 Directive because TierOne wanted to put legs on the countertop and Mr. Radcliffe did not want legs on the countertop. MR. Radcliffe also testified that TierOne wanted to correct complaint Item #2 by putting legs on the countertop. 23. Investigator Morris testified that TierOne did not comply with the second Directive because TierOne was required to obtain permits but was unsuccessful in obtaining the permits from the City of Gilbert. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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 a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 4. The preponderance of the evidence does not show that TierOne violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Mr. Radcliffe did not allow TierOne access to correct the work. Mr. Radcliffe told TierOne that he would have no access to his home. 5. The preponderance of the evidence shows that TierOne hired an unlicensed contractor to perform construction work on Mr. Radcliffe’s home. 6. The preponderance of the evidence established that Complainant denied Respondent reasonable access to his residence to comply with the terms of the written Directive issued on February 25, 2019 regarding the countertop and drywall. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22), with regard to the countertop and drywall items listed in the February 25, 2019 Directive. 7. The preponderance of the evidence shows that Respondent performed poor work in connection with the footing and vinyl flooring. 8. The preponderance of the evidence established that Respondent failed to comply with the Directive issued on May 14, 2019 regarding the vinyl flooring and the footing, which is a violation of A.R.S. 32-1154(A)(22). 9. The preponderance of the evidence shows that TierOne violated Ariz. Rev. Stat. section 32-1158(B) by failing to provide Mr. Radcliffe with a written contract which advised him of his right to file a complaint with the Registrar against TierOne for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B). Furthermore, TierOne did not provide Mr. Radcliffe with a written contract that advised him of the Registrar’s telephone number or website address. 9. The preponderance of the evidence shows that Respondent aided and abetted an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 1154(A)(12).

RECOMMENDed order Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license for a period of three (3) days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 final order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior 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 is forty days after the date of that certification. Done this day, August 22, 2019

Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826