ALJDEC decisions subject to certification as final

2019A-01346-CHC-ROC · Registrar of Contractors · 2019-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2019, 8:30 A.M. APPEARANCES: Complainant James W. Garrison appeared on his own behalf; Respondent appeared through Sunny Jolls, Owner ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Sunny Jolls Custom Painting and Home Improvements, LLC (Respondent), is the holder of License Numbers 314836 and 314837 issued by the Registrar of Contractors (Registrar). 2. On or about March 20, 2019, James W. Garrison (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with a bathroom remodel performed by Respondent at a residence in Chandler, Arizona (“project”). The Complaint reflected a contract amount of $2,450.00. 3. The Registrar performed an inspection of the project on May 7, 2019. Thereafter, the Registrar issued a Directive, dated May 20, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by June 5, 2019, as follows: Complaint No. 1: Tiles not properly aligned, square, or level. Uneven, out of square and lippage of tiles throughout the surface of the pony wall, and throughout entire walk-in shower area. Complaint No. 2: Tiles cut with grinder while on wall leaving unacceptable jagged edges. Cracked tile on pony wall, and jagged and chipped tiles noted through entire throughout [sic] walk-in shower area. Complaint No. 3: Tiles grouted incorrectly and excessively in many areas. Uneven grout joints noted on the pony wall and throughout entire walk-in shower area. Complaint No. 4: Tiles Layout incorrectly. Uneven, out of square and lippage of tiles throughout the surface of the pony wall and throughout entire walk-in shower area. Complaint No. 5: Shower floor tile incorrect. Walk-in shower floor is not properly sloped to the drain preventing proper drainage. Complaint No. 6: Drainage is terrible. Shower floor tile unevenly laid with areas of puddling/ponding water present. Complaint No. 7: Standing water puddles from approx 8 inches to as much as 26 inches from drain. Shower floor tile unevenly laid with areas of puddling/ponding water present. Complaint No. 8: Contractor excessively over used grout to hide obvious mistakes. Excessive and uneven grout joints throughout entire walk-in shower area. Complaint No. 9: Jagged edges on many tiles. Jagged and chipped tiles noted through entire throughout [sic] walk-in shower area.

4. When the Registrar was informed that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated June 10, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract; c. 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 August 29, 2019, at 8:30 A.M. 6. At the August 29, 2019, hearing, Complainant James Garrison testified on his own behalf and presented the testimony of Vickie Garrison. Respondent presented the testimony of Sunny Jolls, Owner, and Shayia Belisle, Director. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit number 1 and Respondent’s exhibit numbers 1 - 5.[1] 7. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified as to the Directive items and subsequently that both parties indicated to him that no corrective work had been performed. He stated that no pre-hearing inspection was done because he was told by Complainant that Complainant had engaged another contractor to complete the work. 8. Complainant James Garrison testified that Mr. Jolls agreed to repair the Directive items and did make attempts but that Mr. Jolls admitted that he was “in over his head.” He testified he received $5,996.97 from Respondent’s insurance carrier but that other items and “violations” were uncovered. 9. Vickie Garrison, wife of Complainant, testified on behalf of Complainant that Complainant settled with the insurance carrier because he had to in order to get refinancing. She stated that Complainant was out an extra $800.00 which she stated was not of concern. She stated she was more concerned that Respondent did not perform as promised. 10. Sunny Jolls, Owner of Respondent, testified on behalf of Respondent that he did not dispute the items in the Directive. He further testified that he apologized for the job he did but that he had taken on a job that was too difficult for him, and would not take on a shower tile job again. 11. Shayia Belisle, Director of Respondent and wife of Mr. Jolls, testified on behalf of Respondent that the total contract price was $2,450.00, of which Complainant paid only $500.00. She stated Respondent was to provide labor and Complainant was to purchase the materials. She further testified that Complainant signed a Settlement and Release and received $5,996.97 from Respondent’s insurance carrier. (Respondent’s Exhibit 1). She also stated that upon the filing of the Complaint, the parties discussed insurance coverage and it was Complainant that initially inquired if Respondent had insurance to cover the defective work. (Respondent’s Exhibit 2). 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:

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

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. The written directive shall set forth the time within which the contractor is to complete the remedial action….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Rule 4-9-108(A) of the Arizona Administrative Code 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) in Chapter 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 in writing at least nine items as delineated therein including 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)(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 the Directive items. 8. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A). Respondent’s contract failed to include notification of Complainant’s right to file a complaint with the Registrar nor did it have an estimated date of completion. (Respondent’s Exhibit 5). 9. A.R.S. § 32-1154(A)(22). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented suggested that the parties never contemplated that Complainant would perform any corrective work. Rather, the evidence reflected that they would look to insurance proceeds from Respondent’s insurance carrier to be paid to Complainant to have any corrective work performed by a contractor of Complainant’s choice. Indeed, the contract price between the parties was $2,300.00 for tile installation (labor only), of which Complainant only paid Respondent $500.00. Complainant then received and accepted $5,996.97 from Respondent’s insurance carrier as “full payment and satisfaction of the claim and causes of action….” (Respondent’s Exhibit 1). The Tribunal need not determine whether a settlement and release as such can absolve a contractor from disciplinary charges, because the Tribunal finds that the parties’ awaiting an insurance settlement payment and the Complainant’s subsequent acceptance of it constituted a valid justification for Respondent not proceeding with corrective action. 10. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(3), Complainant has failed to establish that Respondent’s licenses should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22) because a valid justification has been shown for Respondent’s failure to complete corrective work. 11. Complainant has established that Respondent’s licenses should be conditionally disciplined for a violation of A.R.S. § 32-1154(A)(12). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, that the Citation for A.R.S. § 32-1154(A)(3) and A.R.S. § 32- 1154(A)(22) and Complaint in Case No. 2017A-1618 against Sunny Jolls Custom Painting and Home Improvements, LLC, shall be dismissed. It is further recommended that within thirty (30) days off the effective date of the final order, Respondent shall provide acceptable written proof to the Registrar that Respondent has modified its form contracts to include all of A.R.S. § 32-1158(A)’s nine required terms. If Respondent fails to provide such acceptable written proof within such time period, Respondent’s contractor’s licenses shall be suspended until it does so. 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, September 17, 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 submissions to the Arizona Office of Administrative Hearings.

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