ALJDEC decisions subject to certification as final

2019A-00770-CHC-ROC · Registrar of Contractors · 2019-11-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Lee,

COMPLAINANT

v.

Daniel's Home Improvements LLC,

ROC License: ROC 316804

RESPONDENT

No. 2019A-00770-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 29, 2019, with the record held open until November 6, 2019

APPEARANCES: Complainant Brian Lee appeared on his own behalf. William Chance, Member and Qualifying Party, appeared on behalf of Respondent Daniel’s Home Improvements LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Daniel’s Home Improvements LLC (Respondent) is the holder of License No. 316804 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 11, 2018, Brian Lee (Complainant) entered into a contract with Respondent for a bathroom remodel.

On or about February 15, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

At some point, Respondent hired a second subcontractor to correct the floor of the shower.

The Registrar assigned the complaint to Investigator Paul Smith.

Investigator Smith performed a jobsite inspection on March 19, 2019. The second subcontractor hired by Respondent was present at the jobsite inspection and represented to Investigator Smith that he had been hired and paid by Respondent to correct the floor. The shower bench also did not have any tile on the top, and Kim Lee stated she removed the tiles to show the investigator the lack of waterproofing and that the bench was separating from the wall.

After a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 12, 2019.

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

Complaint Item 1: I don’t believe that the entire shower is sealed properly, the bench is not built properly and the glass [is] falling or separating from the wall.

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

Following the issuance of the written directive, Respondent did not make any attempts to perform any corrective work. After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Smith testified that the written directive mailed to Respondent was returned to the Registrar as undeliverable.

At the hearing, William Chance acknowledged that the work performed by his business partner, Daniel McLaughlin was not in conformity with the Registrar’s standards and offered no excuse for the work performed. Mr. Chance appeared shocked when he viewed the photos of the work performed and stated that it never should have been done in the manner it was.

Complainant and Mr. Chance were given an opportunity to reach a resolution of the complaint and, in fact, reached a tentative agreement. The record was left open to allow the parties to finalize the settlement agreement. However, the Office of Administrative Hearings was notified that the settlement agreement had not been finalized and a recommended decision in the matter should be issued to the Registrar.

Administrative notice is taken of Respondent’s prior License record on November 26, 2019. Such prior License record reflects that Respondent’s License No. 316804 was first issued on December 15, 2017, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 violations 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 316804 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 final 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.

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, November 26, 2019.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors