ALJDEC decisions subject to certification as final

2019A-03397-CHC-ROC · Registrar of Contractors · 2019-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 2019 APPEARANCES: Complainant Karin M. Farrell appeared and was represented by German Yusufov. Johnny Merchant, Owner and Qualifying Party, appeared on behalf of Respondent Merchants’ Services LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Merchants’ Services LLC (Respondent) is the holder of License No. 317391 issued by the Arizona Registrar of Contractors (Registrar). In or about August 2018, Karin M. Farrell (Complainant) entered into a contract with Respondent for the renovation of her home. On or about July 1, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. After a jobsite inspection, Investigator Johndrow 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 August 12, 2019.

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

Complaint Item 1: "All tile work in 2.5 bathrooms and kitchen, caulk not sealed , falling out" (Complainat's description of the grout failure and the poor work in the described locations.) Complaint Item 2: "bathtub cracked 2 places" Complaint Item 3: "paint entire house, places left unpainted,paint on floors, baseboard" (Complainant's description of the poor paint work throughout the residence.) Complaint Item 4: "baseboards separating from wall, uneven" (Complainant's description of the poor installation of the baseboards throughout the residence and separation of the baseboards from the walls in multiple locations.) Complaint Item 5: "tile separating from wall in places" (Complainant's description of the voids between the top of the backsplash and the walls in all of the bathrooms.) Complaint Item 6: "floor new damaged, holes, paint on floor' (Complainant's description stains on the wood flooring, holes and voids along the edges in mutilple locations with a concentration of the condition throughout the staircase and paint on the surface in mutiple locations.) Complaint Item 7: "masterbath water setting still incorrect" (Complainant's description of the reversed hot and cold lines at the shower valve in the master bathroom.) Complaint Item 8: "damaged landscaping, paint disposed of side of house" Complaint Item 9: "hardware has paint" (Complainant's description of paint on door hardware including handles, knobs, pulls and hinges.) Complaint Item 10: "paint repaired with incorrect color" (Complainant's description of the wrong color paint used for touch up in multiple locations.) Complaint Item 12: "tile caulk uneven, tiles chipped" (Complainant's description of the tile being installed uneven along the kitchen backsplash, the grout poorly finished in the kitchen and the bathrooms and the multiple chipped tile edges.) Complaint Item 16: "covered & sanded hole in guest room-nothing covered stereo equipment 4X" (Complainant's description of the poor drywall patch in the guest room.) Complaint Item 17: "Did not paint behind toilets"

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

All errors in original.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Johndrow 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 Johndrow testified that he performed a prehearing inspection on September 27, 2019, and no corrective work had been done at that time. Complainant testified that the day the project was done, she started seeing issues with the work performed by Respondent. Complainant indicated that Respondent had attempted to make repairs since the project was completed, but issues still existed on the project. Complainant stated that Respondent did not attempt to perform any corrective work after the issuance of the directive. Mr. Merchant testified that everything Complainant stated was true. Mr. Merchant acknowledged that corrective work needed to be done and that Respondent had attempted to perform that work in January 2019, but Complainant changed her mind about doing the work at that time. Mr. Merchant did not present any evidence that Respondent attempted to perform any corrective work after the directive was issued. Administrative notice is taken of Respondent’s prior License record on October 22, 2019. Such prior License record reflects that Respondent’s License No. 317391 was first issued on January 23, 2018, and is current. Such prior License record also reflects that there were three open complaints and no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. 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.[1] 4. 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).[2] 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. 317391 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, October 22, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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