ALJDEC decisions subject to certification as final

2019A-03419-CHC-ROC · Registrar of Contractors · 2020-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristi R. Lattin and

Robert Alan DeRuiter

COMPLAINANTS,

v.

Ardavan Ashkanian,

ROC License: ROC 320983

RESPONDENT.

No. 2019A-03419-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 13, 2020

APPEARANCES: Complainants Kristi R. Lattin and Robert Alan DeRuiter appeared on behalf of themselves. Ardavan Ashkanian appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On December 12, 2019, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on January 13, 2020, by the Office of Administrative Hearings in Phoenix, Arizona.

Ardavan Ashkanian holds license number 320983 issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.

5. On or about September 24, 2018, Kristi R. Lattin and Robert Alan DeRuiter (Complainant) entered into a contract wherein Respondent would remodel Complainant’s home.

6. On or about September 29, 2018, Respondent started work.

7. On or about June 2, 2019, Respondent stopped work.

8. On or about July 3, 2019, the Registrar received a Complaint from Complainant alleging poor workmanship and abandonment on the part of Respondent.

9. On or about August 13, 2019, Registrar Investigator Chris Fagerburg

conducted a jobsite inspection.

10. On or about August 28, 2019, Complainant filed an addendum to the complait.

11. On or about September 16, 2019, Investigator Fagerburg conducted a job site inspection regarding the items listed on the addendum.

12. On October 7, 2019, Investigator Fagerburg issued a Directive. The October 7, 2019 Directive provides, in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Friday 10-25-2019.

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DIRECTIVE REQUIREMENTS

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

Complaint Item 1 A: Quality of workmanship is extremely poor. Brushed not rolled

Investigator’s Observation: The complainant pointed out numerous areas in the kitchen where the respondent had used a brush to touch up blemishes on the rolled finish. The brush marks are noticeable standing at a normal position.

Governing Rule: ARS §32-1154 (A) (3)

Complaint Item 1 B: Quality of workmanship is extremely poor. Pantry end panel.

Investigator’s Observation: The complainant pointed out that the rolled finish on the end panel of the pantry was thin and you can see the old darker color showing through. I was able to verify that the coat of paint on the pantry end panel is not adequate and does not cover the old color.

Governing Rule: ARS §32-1154 (A) (3)

Complaint Item 1 C: Quality of workmanship is extremely poor. Different color.

Investigator’s Observation: The complainant pointed out that the door and drawer color is different than the face frame and end panel color. I was able to verify that the doors and drawers are a slightly different color than the face frames and end panels.

Governing Rule: ARS §32-1154 (A) (3)

Complaint Item 2: Did not complete punch list

Investigator’s Observation: During this jobsite investigation the complainant explained that the respondent acknowledged the quality of work was poor and he needed to come back, correct his work and perform punch list items but that he never came back. I was able to verify that there are items that need to be

corrected. Punch list items include, painting pantry end panel a second coat, clean overspray off the walls and surrounding surfaces and touch up blemishes.

Governing Rule: ARS §32-1154 (A) (3)

Complaint Item 9: Left paint on walls, did not touch up or mask

Investigator’s Observation: I was able to verify that there is a residue on the walls in the bathrooms.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 1: Bathroom tub surrounds – finish is streaked, uneven

Investigator’s Observation: The complainant stated that the respondent acknowledged the poor quality of work and was to come back and correct the work but never did. I was able to verify that the finish is streaked

and not uniform.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 2: Bathroom countertops – finish is streaked, uneven, does not look like sample

Investigator’s Observation: During this jobsite investigation the complainant could not provide a sample for comparison to the finished work however, I observed 2-bathroom countertops that had been refinished by the respondent. The finish was streaked and uneven and was not uniform which was visible from a normal standing position.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 3: Did not clean up overspray from coating applied to surrounds and countertops

Investigator’s Observation: During this jobsite investigation the complainant pointed out areas on the walls in the bathrooms that appeared to have a residue or overspray that could be felt by hand. I was able to verify that the surrounding surfaces and walls have overspray that can be felt by touch.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 4: Bathroom countertops – tape lines uneven around sinks where original surface remained

Investigator’s Observation: During this jobsite investigation the complainant pointed out in both bathrooms that the vanity sinks had uneven lines and in some areas the original surface was exposed. I was able to verify that there are uneven tape lines around the sinks and the original surface remains.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 5: Cabinets – door pulls holes drilled uneven & not perpendicular to doors

Investigator’s Observation: I was able to verify that the holes are not drilled in uniform and some of the hardware is not perpendicular to the doors and have uneven spacing.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 6: Cabinets – original cabinet surface showing through new coat

Investigator’s Observation: I was able to verify that the new finish color does not adequately cover the old darker color on the kitchen cabinets.

Governing Rule: ARS §32-1154 (A) (3)

Addendum Complaint Item 7: Applied touch up paint w/brush, does not match original application, texture

Investigator’s Observation: During this jobsite investigation I observed kitchen cabinet doors that had a spray finish. See P (13) and P (15). The complainant explained that the respondent touched up small blemishes with a brush. I was able to verify that the brush marks are visible from a normal standing position and are not uniform in texture with the original sprayed application.

Governing Rule: ARS §32-1154 (A) (3)

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 3: Did not perform work in a timely manner

Investigator’s Observation: The ROC does not have jurisdiction over how a contractor operates their business. However, a contract must provide an estimated start date and an estimated completion date.

Governing Rule: ARS §32-1158 (A)

Complaint Item 4: Failed to show on scheduled dates and times

Investigator’s Observation: The ROC does not have jurisdiction over how a contractor operates their business.

Governing Rule: No Action

Complaint Item 5: Left to go get supplies / never returned

Investigator’s Observation: The ROC does not have jurisdiction over how a contractor operates their business.

Governing Rule: No Action

Complaint Item 6: Samples did not match finish work

Investigator’s Observation: I was not able to verify whether or not the finished work matched the samples.

Governing Rule: No Action

Complaint Item 7: Used out of date product – redo work

Investigator’s Observation: The complainant stated that the respondent eventually bought new product to paint the front door and that this is no longer a complaint item.

Governing Rule: No Action

Complaint Item 8: I had to do some of his work he was contracted to do.

Investigator’s Observation: The complainant explained that he had to install the new hinges on the cabinet doors as he wanted to get the job completed.

Governing Rule: ARS §32-1155 (D) (2) (Modification)

Complaint Item 10: I installed all pulls on drawers & cabinets

Investigator’s Observation: During this jobsite investigation the complainant explained that they were to provide the door and drawer hardware and that the respondent was to drill the holes and install the new hardware. The complainant stated that the respondent drilled the holes in his shop but then never installed the hardware. The complainant stated that he installed the hardware on the cabinets.

Governing Rule: ARS §32-1155 (D) (2) (Modification)

Complaint Item 11: Delayed our travel to CA by one month

Investigator’s Observation: The ROC does not have jurisdiction over how a contractor operates their business.

Governing Rule: No Action

13. Respondent did not make required corrections pursuant to the October 7,

2019 Directive during the time period for compliance.

14. On January 10, 2020, Investigator Fagerburg conducted a prehearing job site inspection. Investigator Fagerburg found that Respondent had not complied with the October 7, 2019 Directive.

15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

16. At hearing, Complainant provided testimony. Respondent testified on behalf of himself. Investigator Fagerburg testified regarding his job site inspections and issuance of the Directive.

17. Complainant testified that Respondent performed poor work and failed to comply with the Directive. Respondent asserted that he tried several times to work with and please Complainant before the complaint was filed. Respondent also stated that the paint colors may have appeared different because Complainant requested a Swiss Coffee paint color which will appear to be different depending upon the lighting.

18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 3, 2020. Respondent’s license was first issued on 7/27/2018 and is active. Such prior License record also shows that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined. . The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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 preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

4. The preponderance of the evidence shows that Respondent failed to

comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend license number 320983 issued to Ardavan Ashkanian for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, February 3, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors