ALJDEC decisions subject to certification as final

2019A-05725-CHC-ROC · Registrar of Contractors · 2020-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brandii Goodin,

COMPLAINANT

Reynolds Flooring Inc.,

License No. 177498, 177497,

RESPONDENT

No. 2019A-05725-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 28, 2020

APPEARANCES: Complainant Brandii Goodin appeared on her own behalf. Respondent Reynolds Flooring Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Reynolds Flooring Inc. (Respondent) is the holder of License Nos. 177498 and 177497 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 13, 2019, Brandii Goodin (Complainant) signed a Purchase Agreement for a new build home built by Respondent. On or about July 19, 2019, Complainant closed on the home and moved in.

On or about November 13, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Wes Ellington. After a jobsite inspection, Investigator Ellington issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified 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 January 13, 2020.

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 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:

Complaint Item 1: Stucco is falling off the walls throughout property or non-existent.

. . . .

Complaint Item 2: Paint throughout house, paint drippings on floors.

. . . .

Complaint Item 3: Baseboards were cut to install tile and trim is very poor workmanship.

. . . .

Complaint Item 4: Window frames are bent and won’t open without force, kitchen and living room.

. . . .

Complaint Item 5, 10 & 11: Drywall cracks throughout property. Globs of paint/drywall around fixtures. Scratches/cuts in walls throughout.

. . . .

Complaint Item 6: Tiles cut around corners and holes in flooring.

. . . .

Complaint Item 7: Bent framing in ceiling in entry walkway and in kitchen.

. . . .

Complaint Item 8: Grout throughout property not cleaned up, poor workmanship.

. . . .

Complaint Item 9: Scratches on master bath tub.

. . . .

Complaint Item 12: Door stopper was installed wrong in bedroom and caused a big hole in closet door.

. . . .

Complaint Item 15: Stopper in 2nd bathroom broken.

. . . .

Complaint Item 16: Weather stripping around doors.

. . . .

Complaint Item 17: Deadbolt and door don't match up on back door.

. . . .

Complaint Item 18: Plastic piece in laundry room around washer and dryer fittings.

. . . .

Complaint Item 19: Plastic piece for chime in laundry room falling off.

. . . .

ADDENDUM ITEMS:

Complaint Item 21: The counter in the kitchen next to the fridge is not straight, we were actually forced to buy another fridge because it didn't fit as expected. Had the cabinets been installed properly we would have been able to use the fridge we brought with us. It was an expense that we could not afford but were forced due to neglect on the builder’s side.

. . . .

Complaint Item 22: The countertops are not level; water or other rolling items will roll off the counters.

. . . .

Complaint Item 23: The bathtub faucet in the 2nd bath is coming off the wall.

. . . .

Complaint Item 24: Hole in master bathroom ceiling.

Approximately two weeks after the issuance of the written directive, Respondent contacted Investigator Ellington and requested additional time to complete the corrective work. At that time, Respondent had not ordered the replacement windows and had not done any corrective work. Investigator Ellington declined granting an extension. After the deadline in the directive expired, Investigator Ellington was notified no corrective work had been performed.

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).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on 8:30 a.m. on April 28, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

A hearing was held on April 28, 2020. Complainant testified on her own behalf and submitted two exhibits.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Ellington testified that because no corrective work had been done, he did not perform a compliance inspection or a prehearing inspection.

Complainant testified that she worked from home, except for Mondays, so Respondent had no excuse for not performing the corrective work as directed.

Randall Goodin, Complainant’s husband, testified that they purchased a brand new house and they find new issues every single day.

Nicholas Bacon, Bacon Family Contracting, testified that he had inspected the home and offered an estimate to address the issues raised by Complainant. Mr. Bacon stated that the work throughout the house was substandard. As examples, Mr. Bacon noted that the framing was not plumb, the drywall had been sanded down too far, the cabinets were not square, and grout was missing between the tile and the bathtub. Mr. Bacon also observed that the baseboards were installed throughout the home and then undercut to install the tile afterwards. Mr. Bacon’s estimate totaled $74899.36.

Administrative notice is taken of Respondent’s prior License record on May 17, 2020. Such prior License record reflects that Respondent’s License No. 177498 was first issued on August 15, 2002, and is active. Such prior License record also reflects that there were two open complaints and one prior complaint resulting in discipline against Respondent’s license. Such prior License record reflects that Respondent’s License No. 177497 was first issued on August 14, 2002, and is active. Such prior License record also reflects that there were no open or prior 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 Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

Complainant established that the cost to repair Respondent’s work was $74,889.36.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 177498 and 177497 for a period of five days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $74,889.36 as restitution pursuant to A.R.S. § 32-1156.01.

It is further recommended that if Respondent fails to pay the entire amount of the restitution 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)(5), unless Respondent tenders payment of any outstanding restitution.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), 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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, May 18, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000