ALJDEC decisions subject to certification as final

2019A-06315-CHC-ROC · Registrar of Contractors · 2020-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Matthew Masterson and Theresa Masterson

COMPLAINANTS

Desert Living General Contracting LLC,

License No. ROC 178030,

RESPONDENT

No. 2019A-06315-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2020

APPEARANCES: Complainants Jason Masterson and Theresa Masterson appeared on their own behalf. Chris Hertzog, Member, appeared on behalf of Respondent Desert Living General Contracting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Living General Contracting LLC (Respondent) is the holder of License No. 178030 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 8, 2019, Jason Masterson and Theresa Masterson (Complainants) entered into a contract with Respondent for a remodeling project including a bathroom and kitchen cabinets.

On or about December 23, 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 Chris Fultz. After a jobsite inspection, Investigator Fultz 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 February 25th, 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: Shower drain cover not set properly- sharp edges.

Investigator’s Observation: The drain cover was not set properly, it has too much lippage and is a injury risk. It will need to be fixed by appropriate means.

. . . .

Complaint Item 2: Shower drainage off-water sits in areas

Investigator’s Observation: The slope of the shower seems to be appropriate for drainage but there are noticeable dips in the floor that do not allow for proper drainage. The shower floor will need to be fixed by appropriate means.

. . . .

Complaint Item 4: 2 subway tiles in shower cracked during installation.

Investigator’s Observation: Cracks were seen in two tiles of the shower walls. These tiles will need to be repaired by appropriate means.

. . . .

Complaint Item 5: Shower boxes/cutouts not sealed properly.

Investigator’s Observation: The gaps seen on the shower cutouts are not sealed properly and would allow water to get behind the tile and cause issues. It will need to be fixed by appropriate means.

. . . .

Complaint Item 7: Toilet not set/sealed correctly (wobbles)

Investigator’s Observation: The toilet was not installed properly and it will need to be fixed by appropriate means.

. . . .

Complaint Item 8: Red cuts marks on marble tile floor-stained in multiple areas.

Investigator’s Observation: There were red cut marks left on the marble floor in the bathroom. They will need to be corrected. It will need to be fixed by appropriate means.

. . . .

Complaint Item 9: Tile cuts and grout lines not even in corners or at ceiling in shower and vanity.

Investigator’s Observation: Although the home is an older home and has settled, the tile installer did not install the tile to the square of those walls. Leaving large gaps in the side and tops of the shower. It will need to be fixed by appropriate means.

. . . .

Complaint Item 11: Baseboards not put behind vanity.

Investigator’s Observation: The contract did not go into detail of what was supposed to be done. Since the wall behind the vanity can be seen, the baseboards should have been installed. It will need to be fixed by appropriate means.

. . . .

Complaint Item 12: Vanity edges not water sealed correctly.

Investigator’s Observation: spacing on the left side of the vanity is outside acceptable standards and a large amount of caulk was used to finish that gap. The caulk has become loose and pulling away from the wall and vanity. It will need to be fixed by appropriate means.

. . . .

Complaint Item 13: Drywall edges around vanity display box has gaps and is not complete.

Investigator’s Observation: In the bathroom by the vanity is a recessed shelf. The shelf finishing isn’t within standards. The gaps at the corners are out of square. It will need to be fixed by appropriate means.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Fultz performed a compliance jobsite inspection. At that time, Investigator Fultz noted that Items 1, 2, 7, 8, 9, 11, and 13 were not corrected to be within the Registrar’s standards.

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 Fultz testified as to his observations during the jobsite and compliance inspections.

Ms. Masterson testified as to her issues with Respondent’s work. Ms. Masterson also stated that Respondent did not contact them until there were only three days left before the deadline in the written directive expired.

Mr. Hertzog acknowledged that the items listed in the written directive were not in compliance with the Registrar’s workmanship standards at the time of the jobsite inspection. Mr. Hertzog stated that the Respondent sent workers to try to correct the items identified in the written direction. However, Mr. Hertzog acknowledged that those items identified by Investigator Fultz were not in compliance with the Registrar’s workmanships standards at the time of the compliance inspection.

Administrative notice is taken of Respondent’s prior License record on June 8, 2020. Such prior License record reflects that Respondent’s License No. 178030 was first issued on September 9, 2002, and is suspended. Such prior License record also reflects that there were no other open complaints and two prior complaints resulting in suspension of 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 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).

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. 178030 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, June 10, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000