ALJDEC decisions subject to certification as final

2019A-00276-CHC-ROC · Registrar of Contractors · 2019-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10, 2019, 1:30 P.M. APPEARANCES: Debra A. Piperata appeared on her own behalf; David W. Williams, Esq. appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Structural Technology Custom Homes, LLC (Respondent), is the holder of License Number 189480 issued by the Registrar of Contractors (Registrar). 2. On or about January 15, 2019, Debra A. Piperata (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and abandonment in connection with a bathroom remodel by Respondent at a residence in Mesa, Arizona (“project”). The Complaint reflected a contract amount of $11,500.00. 3. The Registrar performed an inspection of the project on February 19, 2019. Thereafter, the Registrar issued a Directive, dated February 22, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 9, 2019, 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 3: Bathroom wall texture was off, more like outside stucco Correct Unevenly applied texture on wall between toilet and tub enclosure side wall. Complaint Item 4: Toilet is wedged to wall with styrofoam Styrofoam panels installed between toilet tank and wall in guest bathroom. Measurement from center of closet flange to wall measured at 14 ½ʺ. Contractor is to ensure that commode is installed per manufacturer’s recommendations/specifications. Complaint Item 6: Tile was layed incorrectly has highs and lows Correct by the appropriate means the lippage in excess of 1/32 of an inch between tiles in front of toilet. Complaint Item 7: Enlargement of bathroom door frame was never finished Repair areas of removed tile by both door jambs of guest bathroom door. Properly correct gap above head trim casing on hall side of guest bathroom door, and match existing door trim casing to rest of interior door. Complaint Item 10: Towel rack was placed improperly Installed grab bar on south (S) wall of guest bathroom behind toilet preventing the occupant to reach such. Contractor is to correct by the appropriate means. Complaint Item 11: Toilet paper holder was not moved when toilet was Placed toilet paper holder for guest bathroom in area between toilet tank and wall making use of such extremely difficult to reach and operate. Contractor is to correct by the appropriate means. Complaint Item 12: Ceiling fan in bathroom falling out of ceiling Trim grill for ceiling fan in guest bathroom is not sitting properly against ceiling and showing reveals. Contractor is to correct by the appropriate means. Complaint Item 17: Outlet is hanging out of wall in garage (Unsafe) Outlet on west (W) side of extended wall from guest bathroom into the garage is no secured to box and is missing cover plate. Contractor is to correct by the appropriate means. Complaint Item 18: Wall by tub in guest bathroom is cracking Loose panel on east wall of tub/shower in guest bathroom. Contractor is to correct by the appropriate means. 4. After the Registrar was informed that corrective work had not been fully performed or completed, the Registrar issued a Citation to Respondent, dated March 21, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(9) (aiding or abetting an unlicensed person to evade chapter or knowingly or recklessly combining with an unlicensed person); d. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract; e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for July 10, 2019, at 1:30 P.M. 6. At the July 10, 2019, hearing, Complainant Debra A. Piperata testified on her own behalf and presented the testimony of Brandy Marcum. Respondent presented the testimony of Joseph Rubanow, owner and Qualifying Party, and Ray Rivera, administrator for Respondent. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 -`11, 13, and 14 and Respondent’s exhibit numbers 1 - 11 and exhibit number 12 which was to be submitted after the hearing.[1] 7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he performed a pre-hearing inspection on July 9, 2019, and observed that only Complaint numbers 12 and 17 in the Directive were corrected. He further testified that the contract between the parties lacked the required disclosure to notify the consumer of their rights with respect to the Registrar. (Respondent’s Exhibit No. 1). He also stated that the sole basis for citing Respondent for a violation of A.R.S. § 32-1154(A)(9) was that Mr. Rubanow referred to Steve Herrera, who did the bulk of the work, as his handyman and that a handyman could not perform work for which a permit was required. 8. Complainant Debra Piperado testified that she was never told anything by Respondent or anyone else about the need for a variance due to the work in the garage. She further stated that she refused to sign what Respondent presented to her for a variance or permit because she believed it contained inaccuracies. (Respondent’s Exhibit No. 3). She stated it incorrectly stated that her husband was bound to a wheelchair for the rest of his life, that the wall only came out 14 inches into the garage when it in fact came out 18 inches, and that a car would first hit the water heater before hitting the new wall installed by Respondent. She testified she was never told she needed a permit when she contracted for the work nor did she tell Respondent to go forward with the work without a permit. 9. Brandy Marcum, daughter of Complainant, testified on behalf of Complainant that she only saw Mr. Rubinow about eight times during the course of the project. She further testified she was present when Respondent presented a document for Complainant to sign for a permit. 10. Complainant presented Angelina Schiefelbein as a witness to testify as to prior dealings with Mr. Rubinow unrelated to Complainant’s project. The Tribunal disallowed her testimony on the ground she stated she had no first hand personal knowledge of Complainant’s project or of Respondent’s work relating to Complainant’s project. 11. Joseph Rubanow testified on behalf of Respondent that that after the Directive was issued, he emailed Complainant on February 26, 2019, regarding electrical repairs and other repairs. (Respondent’s Exhibit No. 2). He stated he applied for a permit on February 28, 2019, which was marked as approved on March 3, 2019, with revisions required. (Respondent’s Exhibit No. 10). He further testified that he emailed Complainant on March 13, 2019, informing her of the application for a permit and requesting permission to perform corrective work without a permit. (Respondent’s Exhibit No. 2). Thereafter, Mr. Rubanow stated he emailed her on March 19, 2019, indicating he was working on getting a permit and had asked for an extension of time to obtain the permit. (Respondent’s Exhibit No. 2). He stated he again emailed her on April 1, 2019, indicating he was working on getting a permit. (Respondent’s Exhibit No. 2). He further testified that a variance was required for a final permit and that a variance application required the homeowner’s signature. He stated Mr. Rivera went to the residence at least six times to get Complainant’s signature for the variance application, but that she refused to sign it. (Respondent’s Exhibit 3). 12. Mr. Rubanow further testified that Respondent extended the wall inches in the interior as required by the contract between the parties, but that the exterior wall extended into the garage 18 inches, the difference being the interior 2 by 4. He stated that he told Complainant at the time of entering into the contract that it would cost $1,200 - $1,500 to get a permit and that Complainant asked him to do the work without a permit because she could not afford the extra charge. He stated Complainant would not allow him to do further work without a permit, with the exception of some electrical work done by Respondent’s subcontractor, but he was allowed to go back to take measurements for the permit. He further stated Mr. Herrera was a construction manager for Respondent, and that he never said he was only a handyman. 13. Raymond Rivera, administrator for Respondent, testified on behalf of Respondent that Respondent’s new contract now contains the required disclosure language. 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, Complainant 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:

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.

3. Violation of any rule adopted by the registrar. …

9. Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter. …

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

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.….

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 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) requires in pertinent part that any 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 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. A.R.S. § 32-1154(A)(2). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2), the departure from or disregard of plans or specifications or any building codes. The evidence presented established that Respondent proceeded with the project without a building permit, and Respondent did not contend that such a permit was not required. The Tribunal was not persuaded that Respondent proceeded without a permit with the consent of Complainant. 8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of Directive items 3, 4, 6, 7, 10, 11, and 18, or that the work that formed the basis of such items was not performed in a professional and workmanlike manner. 9. A.R.S. § 32-1154(A)(9). Complainant has not presented sufficient evidence to establish that Respondent aided or abetted a licensed or unlicensed person to evade this chapter, knowingly or recklessly combined or conspired with a licensed or unlicensed person, or allowed one's license to be used by a licensed or unlicensed person in violation of A.R.S. § 32-1154(A)(9). Mr. Rubinow testified that Mr. Herrerra was an employee and acted as his construction manager of the job and there was no evidence presented to refute such status. 10. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under of 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. Although the contract between the parties did not contain notice of the owner’s right to file a complaint with the Registrar, Respondent presented evidence of its new contract with the required language. (Respondent’s Exhibit 12). 11. A.R.S. § 32-1154(A)(22). Complainant has also not presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action without a valid justification. Respondent has presented a valid justification for its failure to complete the corrective action. Because the Directive required that Respondent obtain a permit before proceeding with corrective work, the evidence reflects that Respondent immediately sought a permit on February 28, 2019. (Respondent’s Exhibit 10). During the course of the permit process, Respondent discovered that a variance would be required before a permit would be issued due to the new bathroom wall protruding into the interior of the garage. Respondent further discovered that a variance application to be signed by Complainant would need to be approved by the City of Mesa Board of Adjustment, which Respondent indicated only met monthly. The testimony established that Respondent attempted several times to have Complainant sign the variance application, but Complainant indicated she would not sign it due to inaccuracies she believed were contained in the application. (Respondent’s Exhibit 3). The evidence was not clear whether Complainant brought these concerns to the attention of Respondent, but the Tribunal finds that the alleged inaccuracies were not significant or could have simply been corrected by Complainant before signing. Because Respondent was unable to secure Complainant’s signature, a variance and hence a building permit were not obtainable, and therefore Respondent was prevented from proceeding with the corrective work. 12. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(3), because Respondent has shown a valid justification for not completing the corrective work, Complainant has failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2) and (A)(3). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in this case shall be dismissed. 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 5, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s document submissions to the Arizona Office of Administrative Hearings.

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