FINACT2019A-04120-CHC-ROC-FinalAgencyAction-6815.pdf

2019A-04120-CHC-ROC · Registrar of Contractors · 2020-02-21

I REGISTRAR OF CONTRACTORS OF T}IE STATE OF ARIZONA ) Shauntae Kaylon Davis, Case No. 2019-04120 COMPLAINANT, Docket No. 20194-04 120-CHC-ROC

M&MDiversifiedLLC, FINAL ADMINISTRATTW License No. ROC 2880 I 1, DECISION AND ORDER RESPONDENT.

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l4 Under A.R.S. S 41-1092.08(8), the Registrar may review and accept, modify, or reject

an administrative law judge's written decision. If the Registrar modifies or rejects that

decision, then the Registrar must provide written justification setting forth the reasons for the

t7 modification or rejection of each finding of fact or conclusion of law.

l8 REGISTRAR'S ACCEPTANCE l9 In this case, a hearing was held, and the administrative law judge issued a written

decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that

2t decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge's decision, that

decision is the final administrative decision in this case and becomes effective on March 3 1,

2020.

F'INAL NOTE . On page 5, line 4 1/2, Recommended Order, add "closed as resolved"' I of 2 REGISTRAR OF CONTRACTORS I700 W. Washiigron St.- Sre. 105 - Phoed)q AZ 85007 -2812 Telephone (602)5 42- I 525 Toll Fftr (877)697-9162 Lalll Ul9 I Dated February 20,2020. By :l{ o li J citelli Legal Coursel Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail February 20, 2020 to:. Respondent M&MDiversifiedLLC 910 Plaza Del Gado Siena Vista, 42 85635 Complainant ll Shauntae Kavlon Davis 100 E Kayetin Drive tz Sierra Vista, AZ 85635 Copy sent electronically this same date to:

OfIice of Administrative Eearings Tammy Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar t7 Co;rplainant at email address on record wilh the REgisrrar l8 Case No. 2019-04120 /eu l9

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of2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.- Ste. 105 - Phoed\, AZ 85007 -2812 Telephone (602)542-l 525 Toll F rce (t11)692-97 62 I4lll rl9 RECEIVED 2.4 2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shauntae Kaylon Davis, No. 201 94-041 20-CHC-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE M&MDiversifiedLLC, DECISION ROC License: ROC 288011, RESPONDENT HEARING: January 23, 2020 APPEARANCES: Com plainant Shauntae Kaylong Davis appeared on her own I behalf. Sean Mendoza, Owner and Qualifying Party, appeared on behalf of Respondent M&MDiversifiedLLC. ADMINISTRATIVE LAW JUDGE: Tamm y L. Eigenheer

FINDINGS OF FACT 1. M & M Diversified LLC (Respondent) is the holder of License No. 28801 1 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about October 18, 2018, Renee Schwartz (Owner) entered into a contract with Respondent for, among other things, a kitchen remodel project. 3. On or about August '13, 2019, the Registrar received a Complaint against Respondent from Shauntae Kaylong Davis (Complainant), Owner's tenant, alleging poor work with respect to the project. 4. The Registrar assigned the complaint to lnvestigator Mike Springer. After a jobsite inspection, lnvestigator Springer 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. S 32-1 154(AX22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. S 32-1 154(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 10-12,2019. RECEIVED 4.2020 ROC LEGAL

RESTRICTIONS . You may not perform or hire other contractors to perform work that is outside the scope of your license. . lf your license is currently suspended for prior discipline or administrative reasonsl, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated. DIRECTIVE REQUIREMENTS You are directed to remedy the following violations by the appropriate means. I 1. Complaint ltem 2: Did not patch wall, but caulked it using our materials. Uses homeowner's materials and asked HO to buy more. lnvestigator's Observation: There is a crack in the drywall under the breakfast bar. 2. Complaint ltem 4: Damaged cabinets, informed him of damage said he fix when done. lnvestigator's Observation: Pantry cabinet damaged at bottom. 3. Complaint ltem 9: Problems with electrical after installing lights lnvestigator's Observation: Switch for kitchen lights not functioning correctly. One swilch has to be turned on first for other to work 4. Complaint ltem 11 : Custom counter not what we want' used materials, bowed, not correct. Color pieced from different woods, not sealed, not what we ordered. lnvestigator's Observation: Color of countertop does not match, Respondent stated he has already ordered a replacement. 5. Complaint ltem 14: Some of the drawers stick when opening/closing or will not close completely (contributing to the look of unevenness of the cabinets mentioned in next bullet). lnvestigator's Observation: Drawers are stiff and do not close properly. 6. Complaint ltem 15: Handles of some cabinet drawers showing the holes drilled behind them because the holes are off, lnvestigator's Observation: Holes mis-drilled for handles in two locations. 7. Complaint ltem 17: Several plugs are crooked and not seated flat in electrical boxes, this also looks sloppy and unprofessional. lnvestigator's Observation: Respondent states backsplash will correct this. Outlet covers are not flush. 8. Complaint ltem 18: Large gaps at bottom of the walls behind all cabinets allowing bugs and vermin to enter/nest. Baseboards removed to install cabinets, but cabinets are already away from walls the thickness of the baseboards where they can be visibly observed, like behind the refrigerator.

RECEIVED 4 2020 ROC LEGAL

Looks messy and unprofessional. Should seal with concrete or other thinner baseboards of some type. lnvestigator's Observation: lwas only able to see drywall holes behind the slove and refrigerator. 9. Complaint ltem 19: Lack of tile on right of stove, leaving counters on right of stove significantly shorter than those counters on left of stove, which are tiled undemeath. I would prefer the cabinets be on top of a fully tiled floor, universally. Then the gaps and baseboards should be caulked/sealed, so there is not gaps under counters for bugs to go into and nest. lnvestigator's Observation: Tile is not installed under stove, it does not site level with countertops. 10. Complaint ltem 20: Messy tile-work, missing grout between baseboard tile/wa ll. I lnvestigator's Observation: Grout missing at post wall at corner. 11. Complaint ltem 22: No Building Permit was acquired. lnvestigator's Observation: No permit was applied for. Complainant has 1l concerns over code violations. (Acquire permit and pass all required inspections.) The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

5. Following the issuance of the written directive, Respondent performed some

conective work. Afterthe deadline in the directive expired, lnvestigator Springer performed

a compliance inspection. During the compliance inspection, Complainant was not present,

but Owner represented to lnvestigator Springer that she was satisfied with the correclive

work performed by Respondent. Because of Owner's statements, lnvestigator Springer did not complete a detailed inspection of all the items in the written directive. lnvestigator

Springer concluded that the only item in the written directive that Respondent did not comply with was the requirement to obtain a permit.

6. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. S 32-1154(AX3), namely A.A.C. R4-9-'108; and A.R.S. S 32- 1154(A)(22).

7. lnvestigator Springer testified that he was informed Respondent obtained a permit from the City of Sierra Vista and had passed all required inspections related to the permit on January 21 ,2020.

RECEIVED 4 2020 ROC LEGAL

8. Complainant testified that there were numerous issues still existing on the project that Owner had not mentioned during the compliance inspection. Complainant argued that the corrective work that Respondent completed was not done appropriately. Complainant also stated that the electrical work covered by the permit was not functioning properly.

L Mr- Mendoza testified that he performed the work required by the directive and owner stated she was satisfied with the work done. Mr. Mendoza acknowledged that the project took longer than it should have. I 10. Administrative notice is taken of Respondent's prior License record on February 3,2020. Such prior License record reflects that Respondent's License No' 288011 was first issued on January 3,2014, and was suspended on February 3,2020, for non-renewal. such prior License record also reflects that there were two open complaints and three resolved/setlled complaints against Respondent's Iicense. CONCLUSIONS OF LAW . This matter lies within the Registrar's jurisdiction. See A.R.S. $ 32-1 101 el seg. 2. Complainant bears the burden of proof to establish Respondent's statutory violations bya preponderance of theevidence. See A.R.S. S 41-1092.07(GX2); A.A.C. R2- 19-1 19(A) and A.A.C. R2-19-1 19(B)(1); see a/so Vazanno v. Superior Courl,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." MoRRls K. UDALL, ARlzoNA IAW oF EVTDENCE S 5 (1960). 3. The evidence established that initially Respondent's work was not in conformity with the Registrar's standards. However, after Respondent performed the corrective work, Owner was satisfied with the condition of the project. Further,

Respondent obtained the necessary permit and passed all required inspections-

RECEIVED 4 2020 ROC LEGAL

4. Accordingly, Complainant failed to establish a violation of A.R.S. $ 32- 1154(4)(3), namelyA.A.C. R4-9-108,1 orof A.R S. S32-1154( )(22).'? c MMENDED ORDE

It is recommended that on the effective date of the Registrar's final order in this matter, the Registrar close Complainant's complaint in Case No. 201 9-04120 against

Respondent's License No. 28801 based on Respondent's compliance with the written directive. ln the event of cerlification 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 I the date of that ceftification.

Done this day, February 3,2020.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronicallY to:

Jeffrey Fleetham, Director Registrar of Contractors

A.R S. S 32-1iS4(A)(3) includes among the grounds for suspension, revocation, or other disciplinary .lv]iolation of any rule adopted by the registrar." AAC R4-9-108 action aglinst a contracior's license, "[a]ll work requires-that "[a]ll work shall be performed in a professional and workmanlike manner" and that shall be performed in accordance with any applicable building codes and professional industry standards." , A.R.S. S 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action agiinst a coirtiictofs license, "[flailure to take appropriate corrective action to comply with this chapter 5r with rules adopted pursuant io this chapter without valid justification within a reasonable period of time after receiving a written directive frorn the registrar"'