ALJDEC decisions subject to certification as final

2019A-04878-CHC-ROC · Registrar of Contractors · 2020-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Aaron Cole Largo,

COMPLAINANT

v.

Phx Renovations LLC,

ROC License: ROC 300467,

RESPONDENT

No. 2019A-04878-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 14, 2020, 1:00 P.M.

APPEARANCES: Complainant Aaron Largo appeared on his own behalf; Sean Pollard, owner, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Phx Renovations, LLC, (Respondent), is the holder of License Number 300467 issued by the Registrar of Contractors (Registrar).

2. On or about September 26, 2019, Aaron Largo (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with a bathroom remodels of a residence for Complainant in Chandler, Arizona.

3. After an inspection performed by the Registrar on October 16, 2019, the Registrar issued a Written Directive, dated November 13, 2019, supplemented by an Amended Written Directive, dated November 18, 2019 (“Directive”), requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 19, 2019, as follows:

Complaint Item 1: Craftsman ship / drainage of shower / water running of curb

Investigator’s Observation: At the time of this inspection I observed that shower curb is sloped towards the bathroom floor and not towards the shower pan, this causes water to run into the bathroom floor. I checked the area with the level, and confirmed that the slope (Pitch) measured 3/8” therefore the water is running off in the wrong direction once it lands on the curb. Also the shower pan (Floor) does not have enough pitch to drain water out towards the drain like it should, therefore an area below the shower head holds water and does not drain properly. Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: Drywall repairs & texturing

Investigator’s Observation: Upon this investigation the Complainant showed me areas in the guest bathroom including wall area above the tub, wall around the light fixture, wall next to bathtub, and next to the toilet where the wall texture was not consistent in its application, it shows defects, and it didn’t match the texture on the rest of the walls. The area next to the toilet deflects and a crease is produce when little or mild pressure is applied to the drywall. The Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 3: Thoroughness & cleanliness of repairs / drywall & paint compound on tub

Investigator’s Observation: Complainant showed me the area along the top part of the bathroom tub in the guest bathroom were compound and paint residue did not get removed and the area was left unclean. The Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 4: Plumbing coming out of shower wall /bracket

Investigator’s Observation: Upon this investigation I observed that the hand held shower was loose. Respondent stated that there was a screw that has to be change in order to properly adjust tis fixture. See. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 5; Damage on guest bathroom tub

Investigator’s Observation: This allegation refers to a dent on the left side of the tub surround panel. The damage area is approximately 1 1⁄2” in length by 3/8” in depth. I asked the Respondent if the tub was delivered this way, or if it happened at the time of the installation, and the Respondent replied that he didn’t remember. The dent is visible from a distance of 3” and the area is finish (texture, paint calking). The

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 6: Sheet rock installation around tub

Investigator’s Observation: Refer to Complaint item # 2. The Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 7: Back of guest vanity/ damage & installation

Investigator’s Observation: At the time of this investigation I observed that the cutouts made on the back wood panel of the vanity are not cut to fit the plumbing. Cuts are oversize and do not have a trim of any kind or escutcheon ring installed around it. The Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 8: Loose toilet in guest bathroom

Investigator’s Observation: Upon this investigation I noticed that the toilet in the guest bathroom had an anchor bolt on the left side of its base that was completely loose. All toilet bolts have to be secure and toilet caps were also missing. See (P 9) The Respondent shall correct by the appropriate means

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 9: Mismatch installation of tile & metal trim in both sides of shower

Investigator’s Observation: At this investigation I noticed that the finish trim on both sides of the master bathroom shower are different from each other. The left side had the face of the tile and metal trim installed on top of the wall covering, and the right side had the tile and related trim recessed from the surface of the wall covering. The invoice description under Shower tile install states “Install shower tile on floor, walls,

and niche and grout. Schluter decorative trim will be installed on edges so tile isn’t expose, giving it an elegant finish. The Respondent shall correct by the appropriate means

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 10: Drywall blemishes in master bathroom

Investigator’s Observation: At the time of this investigation I observed the drywall texture blemishes, defects, and how the texture was not consistence in its application in some areas of the master bathroom walls. The areas in question are the left wall in front of tile face trim, right side in front of tile face trim, under light switches on wall by the sink/mirror area and under the sink around the plumbing. The Respondent shall correct by the appropriate means.

Governing Rule: namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 11: Master shower niches not draining / holding water

Investigator’s Observation: Upon this inspection I was able to verify that the niches on the master bathroom shower did not properly drain. We did a test by pouring water inside the niches’ area and it showed the pitch on both niches is sloped towards the back of the wall and not towards the front of the niche which would allow water to drain out. The Respondent shall correct by the appropriate means.

Governing Rule: namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 13: Leakage bathroom sink

Investigator’s Observation: At the time of this investigation I observed a plumbing fitting that went from Plastic pipe (PVC) to metal and it was located in the master bathroom sink. The metal pipe fitting connection is corroded and in bad condition therefore it leaks water. The Respondent shall correct by the appropriate

means.

Governing Rule: namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 14: Fan on bathroom.

Investigator’s Observation: At this investigation the Complainant showed me the fan in the master bathroom. The exhaust fan is installed on the ceiling, but it has to be connected so it ventilates out of the house. At the time of this inspection that installation was not completed and the Respondent stated that they were going to finish the install and then proceed to call the city to schedule the pertinent inspection. The

Respondent shall correct by the appropriate means.

Governing Rule: namely R4-9-108, Poor work not performed in accordance with professional industry standards.

4. After being informed that Respondent had failed to fully comply with Directive, the Registrar then issued a Citation to Respondent, dated January 3, 2020, 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 April 14, 2020, at 1:00 P.M. At the hearing, Complainant Aaron Largo testified on his own behalf. Respondent presented the testimony of Sean Pollard, owner of Respondent. Albert Bernal, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s Exhibit numbers 1-6. 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 stated further that Complainant allowed Respondent additional time to correct the Directive items. He also testified that he performed a pre-hearing inspection on March 10, 2020, and determined that Respondent had only corrected Complaint Item numbers 4, 7, 8, 11, 12 (not listed in Directive), and 13 in the Amended Directive.

7. Complainant Aaron Largo testified that Complaint Item numbers 1, 2, 3, 5, 6, 9, 10, and 14 in the Amended Directive were not corrected. With regard to Complainant Item number 1, he stated it was corrected but that the shower door was not reinstalled. He further stated he would only not allow further work at some point after the Directive expiration date.

8. Sean Pollard testified on behalf of Respondent that Complaint Item number 1 was corrected in terms of the pitch of the shower curb and the floor but that the shower door was not reinstalled because of the bracket alignment issues. He stated that with respect to Complaint Item numbers 2, 5, and 6, he had a verbal agreement with Complainant that Complainant would “live with it” and Respondent would give a refund. However, he further admitted that the parties could not come to an agreement on the credit amount.

9. Mr. Pollard further testified that with regard to Complaint Item number 9, it was not corrected because he would have had to take out a wall. With regard to Complaint Item numbers 10 and 14, he stated that they were not corrected because of scheduling difficulties.

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. Respondent did not dispute that Complaint Item numbers 1 (with regard to shower door), 2, 3, 5, 6, 9, 10, and 14 were deficient and were not corrected.

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). No evidence was presented to support a finding of a valid justification

for failing to take appropriate corrective action. With regard to Respondent’s contention that some of the items were not corrected because of a verbal agreement between the parties in which Complainant would receive a credit, even Respondent conceded that the parties could not agree upon a credit amount. With regard to some of the items, Respondent indicated that a conflict of scheduling dates prevented corrective action, but the evidence reflected that such conflict, if any, were with regard to dates after the Directive expiration. There was no evidence presented of efforts to perform corrective action after the Directive was issued and before the Directive expiration date.

8. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Complaint Item numbers 1 (with regard to reinstall of shower door and any repairs relating thereto), 2, 3, 5, 6, 9, 10, and 14, and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Phx Renovations, LLC’s, License Number 300467 is suspended for two calendar days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $300.00 in certified funds on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors

P.O. Box 6748

Phoenix, Arizona 85505-6748

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)(7), 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, May 4, 2020.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors