ALJDEC decisions subject to certification as final

2019A-04120-CHC-ROC · Registrar of Contractors · 2020-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shauntae Kaylon Davis,

COMPLAINANT

M & M Diversified LLC,

ROC License: ROC 288011,

RESPONDENT

No. 2019A-04120-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 23, 2020

APPEARANCES: Complainant Shauntae Kaylong Davis appeared on her own behalf. Sean Mendoza, Owner and Qualifying Party, appeared on behalf of Respondent M & M Diversified LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

M & M Diversified LLC (Respondent) is the holder of License No. 288011 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 18, 2018, Renee Schwartz (Owner) entered into a contract with Respondent for, among other things, a kitchen remodel project.

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.

The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator 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. § 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 10-12, 2019.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for prior discipline or administrative reasons1, 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:

1. Complaint Item 2: Did not patch wall, but caulked it using our materials. Uses homeowner’s materials and asked HO to buy more.

Investigator’s Observation: There is a crack in the drywall under the breakfast bar.

2. Complaint Item 4: Damaged cabinets, informed him of damage said he fix when done.

Investigator’s Observation: Pantry cabinet damaged at bottom.

3. Complaint Item 9: Problems with electrical after installing lights.

Investigator’s Observation: Switch for kitchen lights not functioning correctly. One switch has to be turned on first for other to work.

4. Complaint Item 11: Custom counter not what we want, used materials, bowed, not correct. Color pieced from different woods, not sealed, not what we ordered.

Investigator’s Observation: Color of countertop does not match, Respondent stated he has already ordered a replacement.

5. Complaint Item 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).

Investigator’s Observation: Drawers are stiff and do not close properly.

6. Complaint Item 15: Handles of some cabinet drawers showing the holes drilled behind them because the holes are off.

Investigator’s Observation: Holes mis-drilled for handles in two locations.

7. Complaint Item 17: Several plugs are crooked and not seated flat in electrical boxes, this also looks sloppy and unprofessional.

Investigator’s Observation: Respondent states backsplash will correct this. Outlet covers are not flush.

8. Complaint Item 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. Looks messy and unprofessional. Should seal with concrete or other thinner baseboards of some type.

Investigator’s Observation: I was only able to see drywall holes behind the stove and refrigerator.

9. Complaint Item 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 underneath. 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.

Investigator’s Observation: Tile is not installed under stove, it does not site level with countertops.

10. Complaint Item 20: Messy tile-work, missing grout between baseboard tile/wall.

Investigator’s Observation: Grout missing at post wall at corner.

11. Complaint Item 22: No Building Permit was acquired.

Investigator’s Observation: No permit was applied for. Complainant has 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.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Springer performed a compliance inspection. During the compliance inspection, Complainant was not present, but Owner represented to Investigator Springer that she was satisfied with the corrective work performed by Respondent. Because of Owner’s statements, Investigator Springer did not complete a detailed inspection of all the items in the written directive. Investigator Springer concluded that the only item in the written directive that Respondent did not comply with was the requirement to obtain a permit.

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 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.

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.

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.

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/settled complaints against Respondent’s license.

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 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).

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.

Accordingly, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, or of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

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. 2019-04120 against Respondent’s License No. 28801 based on Respondent’s compliance with the written directive.

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.

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-137160-45720000Done this day, February 3, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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