ALJDEC decisions subject to certification as final

2019A-03049-CHC-ROC · Registrar of Contractors · 2019-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2019, 8:30 A.M.; October 31, 2019, 8:00 A.M. APPEARANCES: Complainant Larry J. Goldstein appeared on his own behalf; Paul M. Levine, Esq., appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. SOS Builders, LLC, is the holder of License Number 280784 issued by the Registrar of Contractors (Registrar). 2. On or about June 12, 2019, Larry J. Goldstein (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with construction of a replacement residence by Respondent for Complainant in Glendale, Arizona. 3. After an inspection performed by the Registrar on June 20, 2019, the Registrar issued a Directive, dated July 2, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 26, 2019, as follows: 1. Complaint Item 1: Seams and cracks on kitchen granite countertops. Was told that it would be fixed to our satisfaction. Correct kitchen counter top seam to the right of the sink. 2. Complaint Item 2: Backsplash in Kitchen not complete. Complete backsplash tile on stove wall to the left to the correct height to match other locations in kitchen and complete exposed tops and edges around window and at ends by appropriate means. 3. Complaint Item 3: Texture was to be 80/20 Santa Fe. Texture is poorly done and 97/30 Santa Fe. Drywall mud done very unprofessionally. Bumps all over the house. Especially around the cover plates. Seams in texture left trowel marks throughout the home. Living room ceiling especially. Correct bumps, humps, trowel and or sanding marks throughout the home and retexture to an 80/20 Santa Fe. Note: Electric cover plates should seat flat on surface. 4. Complaint Item 4: Unsafe exposed bolts on shade structure outside master bedroom. Correct unused exposed bolt. 5. Complaint Item 5: Baseboards are different sizes throughout the house. Multiple areas had to be improperly cut to fit. Correct incorrectly installed elevation of base in carpeted areas. 6. Complaint Item 6: Runoff pipe on AC unit on roof improperly installed and in the wrong place. Move AC condensate pipe to other end of house per agreement. 7. Complaint Item 7: Wood blinds not installed yet as promised. Complete wood blinds per contract or agreement. 8. Complaint Item 11: Paint not consistent throughout areas of the home. Correct inconsistencies in painting and repaint all repaired drywall. 9. Complaint Item 12: Garage walk through side door is rubbing on the end. Correct rubbing weather strip. 4. After performing a Compliance Inspection on August 21, 2019, and observing that Respondent had failed to fully comply with the Directive, the Registrar then issued a Citation to Respondent, dated August 22, 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 valid justification). 5. The Registrar issued a Notice of Hearing, setting a hearing for October 25, 2019, at 8:30 A.M., which went forward on that date and concluded on October 31, 2019. At the hearing, Complainant Larry Goldstein testified on his own behalf and presented the testimony of Sue Person. Respondent presented the testimony of David Kiesgen, General Manager of Respondent, Adam Louder, estimator of Respondent, and Robert Poulin of Precision Granite and Marble. Jack Grimm, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A-O, R-2, S, T AA, GG, HH and II and Respondent’s Exhibit numbers 1 - 18.[1] 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 inspection. He testified further that he performed a Compliance Inspection on August 14, 2019, and observed that Complaint items 3, 4, 5, 6, 7, 11, and 12 had been completed but that Complaint items 1 and were incomplete. He stated that despite corrective work attempts on the granite countertop seam, there were still chips along the seam and the width of the seam exceeded 1/16th inch in an area adjacent to the seam where a chip on the edge of the countertop had been filled in by Respondent. He further stated that due to Respondent’s paint overspray that occurred during the course of corrective work, Respondent agreed to clean an air return, have the HVAC cleaned and serviced, and remove paint from pavers. 7. Complainant Larry Goldstein testified that he agreed with the Investigator’s findings that Complaint item numbers 4, 6, 7, and 12 had been completed and that Complaint item numbers 1 and 2 had not. However, he disagreed that Complaint item numbers 3, 5, and 8 had been corrected. With respect to Complaint item number 5, he stated that Respondent had failed to correct one baseboard in a closet. With respect to Complaint numbers 3 and 8, he testified that Respondent had not fully corrected the texture and the paint. Further, he stated while the duct had been cleaned and the paint removed from the pavers resulting from paint overspray, he asserted that Respondent had yet to service the HVAC unit. 8. Sue Person, wife of Complainant, testified on behalf of Complainant as to how she created the text exhibits and explained that she had not printed all the texts between the parties. She further testified that after an attempt at repairing the seam of the countertop, she denied saying it was acceptable but instead had said that it had been improved. 9. Robert Poulin testified on behalf of Respondent that he had been an employee of Chivino Surfaces, the subcontractor that had installed Complainant’s countertop, but that he had not personally installed it. He stated he came to the residence on April 11, 2019, on behalf of Chivino to perform a repair on the countertop. He stated the seam needed to be filled and he did so by adding epoxy and additional pigment. He further stated he used a razor to smooth out the surface and then a black marker to add spots to blend the seam with the rest of the countertop. He further stated that he observed a smaller than dime-sized chip on the on edge of the countertop adjacent to the seam that he also repaired. He testified that his repairs were within the Marble Institute of America’s standards and that in his opinion, the countertops were now in compliance with workmanship standards. 10. David Kiesgen testified on behalf of Respondent that he was present when Chimino Services came out again to the residence on July 24, 2019, to repair the seam. He stated he observed that they scraped the entire length of seam, used a grinding machine, and polished it and that the seam was then improved and not as jagged. He testified further that the kitchen backsplash was not completed because Respondent was awaiting a final resolution of the countertop before proceeding in order to avoid duplicative work. 11. Adam Louder testified on behalf of Respondent that he was the estimator on the job and that he never told Complainant that the countertop would be replaced. Rather, he stated he told Complainant that he would advise Chivino that Complainant desired that the countertop be replaced.

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 with respect to Complain item numbers 1, 2, and 5. Complaint item number 1. The vast majority of the evidence presented concerned one of two seams of the kitchen countertop. While both parties submitted photographs of the seam at various stages of repair, the Investigator’s photographs of August 14, 2019, were apparently the last photographs taken. The Tribunal finds it unfortunate that there were no photographs presented of the other seam on the countertop that was not at issue. Although seams are not required to be identical, a depiction of the other seam would have at least given some indication of an acceptable seam that met minimum workmanship standards. While the parties differed on whether the seam in question was acceptable or met minimum workmanship standards, the Tribunal defers to the judgment of the unbiased Investigator who found the seam to be deficient. The Investigator’s August 14, 2019, photographs do show imperfections and inconsistencies, although the photographs have limited utility in depicting the full extent of such. More persuasive was the Investigator’s testimony of his first hand observation that there were still chips and rough edges along the seam of the countertop. Complaint item number 2. It understandable that Respondent would delay corrective action on the kitchen backsplash pending a resolution of the countertop. However, as far as Respondent should have been concerned after repairing the countertop for the last time, its work would have been complete and therefore Respondent should have proceeded to complete the backsplash. There was no “resolution” for which to wait at that point in time; only a Compliance Inspection and this hearing on the Citation remained. Further, even had this Tribunal decided that the countertop met workmanship standards, Complainant would still have been left with an unfinished backsplash. Complaint item number 5. There was no dispute that Respondent overlooked repairing the baseboard in one closet. (Complainant’s Exhibit F). With regard to Complaint item numbers 3 and 8, Complainant did not present sufficient evidence to rebut the Investigator’s findings. 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 Respondent made attempts at corrective action, the fact that the Tribunal finds that such attempts were not completely successful in itself constitutes a failure to take appropriate corrective action without a valid justification. Further with respect to the paint overspray resulting from the corrective work and Respondent’s agreement to service the HVAC unit, Respondent has presented a valid justification for failing to do so. Respondent made every effort to do so and unfortunately Complainant’s schedule could not accommodate it. 8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with respect to Complaint item numbers 1, 2, and 5 and A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this SOS Builders, LLC’s License Number 280784 is suspended for two consecutive 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 $200.00 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, November 20, 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