ALJDEC decisions subject to certification as final

2019A-01963-CHC-ROC · Registrar of Contractors · 2019-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2019, 1:00 P.M. APPEARANCES: Complainant Maria Jo appeared on her own behalf; Ana D. Lugo appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Creative Works Consulting LLC, DBA: Optimum Construction (Respondent), is the holder of License Number 309549 issued by the Registrar of Contractors (Registrar). 2. On or about April 17, 2019, Complainant Maria Jo filed a Complaint against Respondent with the Registrar alleging poor work by Respondent in connection with bathroom remodeling for Complainant at a residence in Yuma, Arizona. 3. After an inspection performed by the Registrar on May 9, 2019, the Registrar issued a Directive, dated May 10, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 31, 2019, as follows: Complaint Item 1: She has not finished the project which is bathroom remodeling, replace shower valve and remove threshold. Remove side walls at shower. Build 4” threshold. She didn’t do it right. Hallway bathroom shower curb (threshold) is about 6 ½-6 ¾ inches in height. Tile in shower floor was observed uneven by more than 1/32 “. Complaint Item 2: I have found out a water heater was not installed right way. Water heater was installed however, it was not brought up to code as required by local jurisdiction. Local jurisdiction confirmed no permit was required but, it must be brought up to code. Water heater did not have straps nor drain pipe as required. 4. After performing a Compliance Inspection on June 6, 2019, and observing that Respondent had failed to comply with Directive, the Registrar then issued a Citation to Respondent, dated June 21, 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)(22) (failure to perform corrective action without a valid justification). 5. The Registrar issued a Notice of Hearing, setting a hearing for August 20, 2019, at 1:00 P.M. At the hearing, Complainant Maria Jo testified on her own behalf. Respondent presented the testimony of Ana Lugo, Qualifying Party and Manager of Respondent, and Juan Lugo. Ruben Perez, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s unnumbered exhibits (collectively designed as Exhibit 1) and Respondent’s exhibit number 1.[1] Documents submitted by Complainant after the close of the hearing were not admitted as exhibits were and not considered by the Tribunal. 6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. He testified further that he performed a pre-hearing inspection on August 15, 2019, and observed that the Directive items had been corrected. However, he observed that the shower drain was now clogged and there was some leaking evidenced by water stains on the baseboard near the shower. He stated the water had drained properly during the first two inspections. 7. Complainant Maria Jo testified that she bought the house in September 2018 at auction as a rental and stated that no one had lived in the house since the purchase. She admitted that the water heater Directive matter had been corrected. She stated the drain drained properly before the work even started and that she had had a plumber in earlier to deal with plumbing issues who had installed new plumbing in other areas of house. She engaged Above All Plumbing on July 29, 2019, to check out drain who reported back to her that they were unable to get the snake line down the drain due to obstructions that appeared to be concrete, grout, and other debris in the p-trap of the shower. 8. Ana Lugo testified on behalf of Respondent that the contract was terminated by letter dated April 10, 2019. She stated that initially Respondent did nothing to the shower floor other than replace the tile but then Respondent later leveled the floor. She stated there was no water tests on the first two inspections but admitted she was not present. She said she hired Neighborhood Plumbing of Yuma to check the drain on July 2, 2019, who reported that draining was slow due to deterioration of the sewer system. (Respondent’s Exhibit 1). She stated that she believed the baseboard was wet from water leaking from an inner wall, not from the shower. She said also that the shower head was capped and there was no valve when they first started job. 9. Juan Lugo, husband of Ms. Lugo, testified on behalf of Respondent that he was present during the initial walkthrough with Complainant and he observed uneven flooring. He stated Complainant did not want to spend additional money for the project to level the flooring. 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 acts: … 3. Violation of any rule adopted by the registrar. …

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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. Although the Directive items were completed by Respondent, the Tribunal is persuaded by a preponderance of the evidence that it was Respondent’s corrective work that caused the issues with the drain. The Investigator testified that water tests had been performed at earlier inspections without a problem and only after Respondent’s corrective work did Complainant experience draining issues. With regard to the water-stained baseboard, the other post-corrective work deficiency, the evidence was insufficient to show that such was caused by Respondent’s corrective work. 7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). While the evidence reflected that Respondent initially corrected the Directive items, the corrective work created the new problem of a clogged drain. Accordingly, Respondent failed to take appropriate corrective action in connection with the Directive. 8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32- 1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Creative Works Consulting LLC’s, License Number 309549 is suspended for two business days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 the outstanding prior civil penalty. 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 9, 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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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826