ALJDEC decisions subject to certification as final

2019A-01407-CHC-ROC · Registrar of Contractors · 2019-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2019 at 8:30 AM. APPEARANCES: José Coronado (“Complainant”) appeared on his own behalf with Michael Springer as a witness. Craig Brown appeared for Riley Brown Remodeling LLC (“Respondent”). Jacklyn Della Torri observed. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT Background and Procedure 1. Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website as of July 18, 2019. According to the Registrar’s public website, on September 21, 2018, the Registrar issued License No. 322123 for Specialty Dual CR-61 Carpentry, Remodeling and Repairs contracting to Respondent.[1] License No. 322123 is current and renewed through September 30, 2020. Craig Riley Brown is listed as the Qualifying Party and Member on the license.[2] Respondent’s address of record on the license is 6919 E Mesa Grande Dr., Tucson, AZ 85715- 3228.[3] The license has a $6,750.00 surety bond through RLI Insurance Company effective August 31, 2018. There is one open complaint against the license, which is presumed to be Complainant’s. No other disciplinary action is listed on the license. 2. According to the Complaint, on December 03, 2018, Complainant and Respondent entered into an unsigned residential contract agreement whereby Respondent agreed to install new kitchen cabinets and carpet throughout, for the sum total of $3,432.39.[4] Complainant provided a $1,500.00 deposit on the project.[5] 3. On March 20, 2019, the Registrar received a complaint from Complainant alleging abandonment and poor workmanship.[6] 4. On March 26, 2019, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by a Registrar investigator on April 16, 2019, at 11:30 a.m.[7] 5. On April 16, 2019, Registrar investigator Michael Springer (“Investigator Springer”) conducted a review of the contract executed between the parties. Investigator Springer also inspected the work that had been done on the project to date and took photographs of the property. When he was finished, Investigator Springer drafted Jobsite Inspection Notes.[8] 6. On April 16, 2019, Investigator Springer issued a Directive from the Registrar to Respondent because he substantiated Complainant’s abandonment and poor workmanship allegations.[9] Respondent was put on notice that it had until May 05, 2019, to notify the Registrar of its compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).[10] 7. On May 20, 2019, the Registrar issued a Citation and Complaint to Respondent under Ariz. Rev. Stat. § 32-1155(A), alleging violations of Ariz. Admin. Code R4-9-108 and Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(22).[11] Respondent was given until June 04, 2019, to respond with its Answer.[12] 8. On May 20, 2019, Respondent supplied its Answer to the Registrar.[13] 9. On May 22, 2019, the Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 18, 2019. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges: Charge 1: A 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). Charge 2: A violation of A.R.S. § 32-1154(A)(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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”).[14]

Hearing Evidence 10. Complainants testified on his own behalf, called Michael Springer as a witness, and submitted seven exhibits. Respondent called Craig Brown as a witness. The Notice of Hearing and Registrar’s electronic hearing file were also admitted into the record.[15] Complainant’s testimony 11. On December 03, 2018, Complainant and Respondent entered into an agreement for Respondent to install new carpet pads, reinstall carpet, install new carpet, and install kitchen cabinets at his residence located at 7005 E Kingston Dr., Tucson, Arizona 85710, for a total of $3,432.39.[16] 12. Regarding the new carpet installation, Complainant asked Respondent to choose a color to match his home’s existing carpet. The morning of March 06, 2019, Respondent supplied Complainant with a carpet sample.[17] Later that evening Respondent asked Complainant “[D]id you have a change to look at that carpet sample?”[18] Complainant replied “[S]ure did. [W]e can go with that carpet type.”[19] 13. On March 09, 2019, the new carpet was installed. Complainant was not present because he was at work. When Complainant returned home and noticed the color of carpet that had been installed, he immediately contacted Respondent via text message to complain that the color was incorrect.[20] 14. Respondent asked Complainant to take a photograph of the sample on top of the installed carpet and send it to him, which Complainant did.[21]

15. From there, an argument ensued between the parties as to whether the right color carpet was installed, how, if at all, the problem could be remediated, and how, if at all, the parties could agree to terminate their agreement.[22] 16. On March 11, 2019, Respondent declared that they were “parting ways” as he no longer wished to work with Complainant on the project.[23] Respondent also denied having a contractual agreement with Complainant, as “no papers were signed.”[24] 17. On March 15, 2019, Complainant filed his complaint with the Registrar. 18. On April 16, 2019, at the jobsite inspection, Respondent provided Investigator Springer with a Griswold carpet sample. Complainant denied having ever seen the carpet shade prior to that date. The Griswold sample matched the color of carpet that had been installed in Complainant’s home. 19. After the Directive was issued, Respondent sent Complainant an updated contract to sign, which Complainant refused because of the change in terms. Specifically, instead of listing the carpet as $6.25 per yard as they had originally agreed, it was optioned at Steele for $7.99 per yard, including padding and replacement, or Griswold in the alternative at $6.29 per yard. 20. Respondent never addressed the cabinetry portion of the parties’ agreement. Michael Springer’s testimony 21. Investigator Springer testified that he was assigned Case 2019-01407 by the Registrar on or about March 26, 2019. 22. Investigator Springer scheduled a jobsite inspection for April 16, 2019, whereby it was conducted on that date. 23. Both parties were present for the inspection. Investigator Springer took seven photographs during his inspection of the project, and reviewed the contract agreement between the parties. The contract was not signed by Complainant and did not specify the carpet color to be installed on the project. Investigator Springer also reviewed two carpet samples; Steel and Griswold. Ultimately, Investigator Springer substantiated both of Complainant’s complaint items. 24. On April 16, 2019, Investigator Springer issued a Directive to Respondent, which required Respondent to complete the project per the terms of the contract by appropriate means, or come to a financial agreement with Complainant no later than May 05, 2019.[25] 25. On May 10, 2019, Complainant informed Investigator Springer that Respondent had not complied with the Directive. 26. Investigator Springer testified that he confirmed no work had taken place as of May 14, 2019, as the parties would not agree to sign the original contract, and updated contract, or enter into a financial settlement agreement. 27. On May 16, 2019, Investigator Springer forwarded the case to the Registrar’s legal department with a recommendation for a citation.[26]

Craig Brown’s testimony 28. Complainant’s $1,500.00 deposit was for the entire project, not just for the kitchen cabinets. 29. Respondent denied ever giving Complainant a Steele carpet sample. 30. When Complainant first contacted Respondent regarding the concern over the color of carpet that had been installed in his home, Respondent offered Complainant two remediation options. First, Respondent offered to refund Complainant $91.00. Second, Respondent offered to remove the Griswold carpet and install Complainant’s carpet color choice at no charge, if Complainant paid for the new carpet. Complainant declined both offers and wanted Respondent to pay for the new carpet, remove the Griswold carpet, and install the new carpet for free. 31. After Respondent refused, Complainant filed his complaint with the Registrar. 32. Respondent issued a final remediation offer to Complainant whereby he agreed to purchase the Steele carpet, remove the Griswold carpet, and install the new carpet for free, as long as Complainant agreed to release him from the cabinetry obligation of their agreement. Complainant refused. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[27] 2. The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.[28] 3. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[29] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[30] 4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[31] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[32] 5. Ariz. Admin. Code R4-9-108 requires that “a contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.” 6. Ariz. Rev. Stat. § 32-1154(A)(3) holds that a holder of a license may not violate a rule adopted by the Registrar. 7. Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that a holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award. 8. It is undisputed that the Registrar required Respondent’s full compliance to the Directive by May 05, 2019. It is also undisputed that Respondent failed to fully comply. 9. Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project. This is an affirmative defense that Respondent bears the burden to establish. 10. Here, Mr. Brown has established by a preponderance of the evidence that the he was tasked by Complainant with choosing a carpet color for installation, that he chose Griswold, that he obtained approval from Complainant prior to install, and did in fact install the Griswold carpet for Complainant. 11. The record, however, also reflects that Respondent did not install Complainant’s kitchen cabinets or enter into a financial agreement with Complainant prior the corrective work order’s compliance deadline. There is no evidence in the record to support a finding that Respondent tried to perform the cabinetry installation or that Complainant denied Respondent access to the project site. The record shows that Respondent intentionally and willfully refused to perform the kitchen cabinetry portion of the project. 12. Because Complainant established by a preponderance of the evidence that Respondent failed to perform the scope of work included in contract with Complainant, as ordered by the Registrar’s Directive, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license under Ariz. Rev. Stat. § 32- 1154(A)(22). RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that that on the effective date of the final order in this matter Respondent Riley Brown Remodeling LLC ROC License No: 322123 shall be suspended for one (1) business day. 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 14, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACclKEAT. [2] Id. [3] Id. [4] See Registrar’s electric file, pages 105-110. [5] Id. [6] Id. [7] See Registrar’s electric file, pages 45-46. [8] See Registrar’s electric file, pages 40-41. [9] See Registrar’s electric file, pages 38-39. [10] Id. [11] See Registrar’s electric file, pages 6-11. [12] Id. [13] See Registrar’s electric file, page 64. [14] See Notice of Hearing; see also Registrar’s electric file, pages 7-8. [15] On July 18, 2019, a Minute Entry was issued holding the record open until July 26, 2019, to allow the Registrar to supplement the record with documentation missing in part or in whole from their electronic record. The Registrar’s response was received on July 18, 2019. [16] See Registrar’s electric file, page 105. [17] See Registrar’s electric file, page 121. [18] Id. [19] Id. [20] See Registrar’s electric file, pages 126-127. [21] See Registrar’s electric file, pages 129-130. [22] See Registrar’s electric file, pages 130-133. [23] See Registrar’s electric file, page 134. [24] Id. [25] See Registrar’s electric file, pages 103-104. [26] See Registrar’s electric file, page 115. [27] See Ariz. Rev. Stat. § 32-1154(A). [28] See Ariz. Rev. Stat. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). [29] Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [30] See Ariz. Admin. Code R2-19-119(B)(2). [31] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [32] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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