ALJDEC decisions subject to certification as final

2019A-05226-CHC-ROC · Registrar of Contractors · 2020-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Edward Acevedo and Sandra Acevedo,

COMPLAINANT,

Professional Choice Builders LLC,

License No. ROC 154720,

RESPONDENT.

No. 2019A-05226-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 10, 2020

APPEARANCES: Edward Acevedo and Sandra Acevedo represented themselves. Jerry B. DeRose represented Professional Choice Builders, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

Respondent Professional Choice Builders, LLC (Professional Choice) holds License No. 154720, issued by the Arizona Registrar of Contractors (Registrar).

David Allan Walpole is the qualifying party for Professional Choice.

On or about October 5, 2018, Complainant and Professional Choice entered into a residential remodeling contract.

On or about November 1, 2018, Professional Choice started work.

On or about May 9, 2019, Professional Choice completed the project.

On or about October 17, 2019, the Registrar received a complaint from

Complainant alleging poor workmanship on the part of Professional Choice.

On or about November 19, 2020, Investigator Chris Allison conducted a

job-site inspection. Investigator Allison substantiated several of items listed in the complaint. With regard to Complaint items 13 and 19, Investigator Allison observed:

Complaint Item 13: Floors in new kitchen are dropping, feels like running downhill.

Investigator’s Observation: At the time of inspection there was a slope from the existing floor to the floor in the kitchen addition. The plans provided do not show any such transition. The floors should be flat at the meeting of the existing to the addition.

Complaint Item 19: Gap between flooring and cabinets in kitchen addition.

Investigator’s Observation: At the time of inspection there are gaps between the edge of the floor and the cabinet’s toe tick. The floor in an engineered hardwood floating floor. The edge of the flooring needs to be concealed while allowing it to expand and contract.

8. On or about November 25, 2020, the Registrar issued a Directive to

Professional Choice.

9. Complainant filed addendums to the complaint on February 3, 2020, February 24, 2020, and March 3, 2020.

10. In March of 2020, the Registrar issued its final Directive to Professional Choice that incorporated all of Complainant’s addendum items. The deadline to correct the items was extended . The final deadline was May 17, 2020.

11. On May 27, 2020, Investigator Allison conducted a compliance inspection. Investigator Allison concluded that Professional Choice corrected the Directive items with the exception of Complaint Items 13, 18, 19, 21, and 24. Investigator Allison made concluded:

Complaint Item 13: At the time of the compliance inspection there was still a hump in the flooring as large as 3⁄4”. This item was not corrected. NOT IN COMPLIANCE WITH DIRECTIVE.

Complaint Item 18: At the time of the compliance inspection the barn door between the Great Room and the Hallway does not have an adequate coverage for the opening. It appears the door may not be wide enough. NOT IN COMPLIANCE WITH DIRECTIVE.

Complaint Item 19: At the time of the compliance inspection this item was not corrected. NOT IN COMPLIANCE WITH DIRECTIVE.

Complaint Item 21: At the time of the compliance inspection the Master Bathroom Paint was not completed. There was still spots where the paint did not cover. NOT IN COMPLIANCE WITH DIRECTIVE.

Complaint Item 24: At the time of inspection the cracks in the stair stringers were caulked. The caulking was sloppy and excessive. There was also at least 1 stringer that the crack was large enough and long enough it needed to be replaced. NOT IN COMPLIANCE WITH DIRECTIVE.

On August 7, 2020, Investigator Allison conducted a pre-hearing inspection. Investigator Allison learned that Professional Choice issued a check to Complainant for the repair of Complaint Item 18. Investigator Allison concluded that Complaint Items 13 and 19 were not in compliance with the Directive. Complainant told Investigator Allison at the pre-hearing inspection that Professional Choice had repainted the Master Bathroom and that Complainant was satisfied with the paint job. Investigator Allison also concluded that Complaint Item 24 had been repaired.

On or about June 3, 2020, the Registrar issued a Citation against Professional Choice’s license. Through the Citation, the Registrar alleged that Professional Choice may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3), and Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Professional Choice’s license.

Professional Choice filed a timely appeal to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

A hearing was held on August 10, 2020.

At hearing, Investigator Allison testified regarding his job site inspection,

the issuance of the Directive, the compliance inspection, and the pre-hearing inspection.

14. Ms. Acevedo testified that Professional Choice performed poor work when it remodeled her home. At the time of the hearing, Ms. Acevedo stated that she received a check from Professional Choice for Complaint Item 18. However, the check had not cleared her bank account as of the date of the hearing.

15. Mr. Walpole explained that the poor work found by Investigator Allison was the result of a foundation problem caused by a prior contractor and not by Professional Choice. Mr. Walpole explained that he sent several subcontractors to the jobsite to correct the work. However, Mr. Walpole stated the subcontractors refused to make any repairs because they concluded that the foundation stem wall moves and caused Complainant’s floor to rise.

CONCLUSIONS OF LAW

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

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 a preponderance of the evidence. See A.A.C. R2-19-119.

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).

5. Upon consideration of the evidence presented in this matter, the Administrative Law Judge concludes that the preponderance of the evidence does not show that the problems found in Complaint Items 13 and 19 were caused by a foundation defect in Complainant’s home.

6. The preponderance of the evidence showed that the issues found by

Investigator Allison demonstrate that Professional Choice failed to remodel Complainant’s home in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

6. The preponderance of the evidence showed that Respondent failed to

correct the items listed in 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 No. 154720 of Professional Choice Builders, LLC for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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.

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 forty days from the date of that certification.

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-137160-45720000Done this day, August 31, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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