ALJDEC decisions subject to certification as final

2019A-06121-CHC-ROC · Registrar of Contractors · 2020-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Scott Simpson,

COMPLAINANT

First Class Remodeling LLC,

License No. ROC 315123,

RESPONDENT

No. 2019A-06121-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 21, 2020

APPEARANCES: Complainant Steven Scott Simpson appeared on his own behalf. Gary Kozad, Qualifying Party, appeared on behalf of Respondent First Class Remodeling LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

First Class Remodeling LLC (Respondent) is the holder of License No. 315123 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 9, 2019, Respondent provided Steven Scott Simpson (Complainant) with an estimate regarding a project. The estimate did not include Respondent’s ROC license number, an estimated date of completion, or an advisement that Complainant had the right to file a complaint with the Registrar.

Complainant accepted the estimate as a contract for work to be performed including, among other things, installation of new flooring and a urinal.

On or about December 11, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Steve Philpott who conducted a jobsite inspection on February 3, 2020. Because Complainant had hired another contractor to perform work on the project prior to the filing the complaint, Investigator Philpott was unable to substantiate the majority of the complaint items.

On March 5, 2020, Investigator Philpott 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 March 26, 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:

Compliance Item: 4 - Toilet installed too far from wall

Investigator’s Observation: This complaint item is verified. The underlying issue is that a new urinal was installed without a building permit, potentially causing a clearance problem in front of the existing toilet.

According to the IRC section R307.1, 21” clearance is required from the front of the toilet fixture. Note- The Toilet has been rotated from its original position by the Complainant, after the installation by the Respondent. Prior to any work beginning all applicable permits shall be obtained. Unpermitted work shall be inspected by the local building inspector and any building code deficiencies identified or code violations caused by the Respondent shall be corrected.

Respondent shall correct by appropriate means.

. . . .

Compliance Item: 17 - Missing baseboard at built-in in master bedroom

Investigator’s Observation: This complaint item is verified. Respondent

shall correct by appropriate

. . . .

Compliance Item: 20 - Engineered wood floor not installed correctly....Seams lap up together

Investigator’s Observation: This complaint item is verified.

Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions. Note - Manufactured specs call for minimum end stagger of 6"

. . . .

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

. . . .

Compliance Item: 18 - Closet door frame cut too short in bedroom

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate

On March 5, 2020, Investigator Philpott issued a Warning Letter to Respondent indicating that the Registrar believed the necessary building permits were not obtained for Complainant’s project. The Warning Letter provided that the failure to obtain a permit when required would constitute a violation of A.R.S. § 32-1154(A)(2), which would be a cause for discipline.

On March 5, 2020, Investigator Philpott issued a Warning Letter to Respondent indicating that it appeared Respondent may have violated A.R.S. § 32-1124(B) because the estimate in this matter did not include Respondent’s license number preceded by the acronym “ROC.” It was noted that a failure to comply with A.R.S. § 32-1124(B) constituted a violation of A.R.S. § 32-1154(A)(12), which would be a cause for discipline.

On March 5, 2020, Investigator Philpott issued a Warning Letter to Respondent indicating that it appeared Respondent may have violated A.R.S. § 32-1158(A) because its contract was missing at least one of the required elements of a contract. It was noted that a failure to comply with A.R.S. § 32-1158(A) constituted a violation of A.R.S. § 32-1154(A)(12), which would be a cause for discipline.

On March 21, 2020, Respondent texted Complainant to arrange time to perform the corrective work. Complainant did not respond to the text. According to his testimony, Complainant did not reply because he did not want Respondent to perform any corrective work on the project.

At 4:59 p.m. on March 23, 2020, Respondent emailed Complainant to arrange time to perform the corrective work. Complainant responded to the email at 8:17 p.m. on March 24, 2020, with a list of requirements as to how Respondent would be permitted to perform the corrective work.

After the deadline in the directive expired, Investigator Philpott 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)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B) and A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

In response to the Citation, Respondent submitted an answer in which it indicated that it misunderstood the “context” of the written directive and believed that it was required to make contact with Complainant to arrange for the corrective work to be done by the deadline included, not that the corrective work needed to be done by that date.

Investigator Philpott testified that Item 18 should have been included as an item to be corrected, but was improperly listed under the items that did not require correction. Investigator Philpott stated that the installation of the urinal required a permit, which was not obtained prior to the project. Investigator Philpott indicated that Respondent appeared to have installed the urinal and then realized there was insufficient clearance in from of the toilet, so rotated the toilet, which left the toilet situated away from the wall.

Complainant testified that he did not answer Respondent’s text because he did not want Respondent to perform any corrective work on the project. According to Complainant, Respondent had “already messed up the job” and asserted, “Why would I let them come back and perform the corrective work?”

Justin Kozad testified that Respondent was not licensed to do the plumbing work, but told Complainant that it was ready to repair the flooring issues. Mr. Kozad stated that even if a permit had been obtained for the urinal installation, the clearance issue would have still existed.

Administrative notice is taken of Respondent’s prior License record on August 10, 2020. Such prior License record reflects that Respondent’s License No. 315123 was first issued on August 14, 2017, and is active. Such prior License record also reflects that there were no other open complaints 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 installed the urinal and rotated the toilet in a manner inconsistent with the plans and performed work on a project that required a permit prior to the permit having been obtained. Therefore, Complainant established that Respondent departed from the plans and disregarded the city codes in violation of A.R.S. § 32-1154(A)(2)(a) and (b).

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’s estimate did not include its license number preceded by the acronym “ROC” as required by A.R.S. § 32-1124(B) and its contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statutes in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. While Respondent attempted to contact Complainant in the days before the deadline in the directive expired and Complainant did not timely respond because he did not want Respondent to perform the corrective work, Respondent took no action to obtain a permit or to secure the services of a properly licensed contractor to perform the corrective work on the plumbing. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 315123 for a period of three days.

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)(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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, August 10, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000