ALJDEC decisions subject to certification as final

2020A-00874-CHC-ROC · Registrar of Contractors · 2020-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Weston James Suddreth,

COMPLAINANT

Patterson Remodeling LLC,

License No. ROC 245563, 242914

RESPONDENT

No. 2020A-00874-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 2, 2020

APPEARANCES: Complainant Weston James Suddreth, appeared on his own behalf via Google Meet. Respondent Patterson Remodeling LLC, was represented by Andrew DiCarlo, Esq. appearing via Google Meet. Mike Nation, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Patterson Remodeling LLC. (Respondent) is the holder of License Nos. 245563 and 242914 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 2, 2018, Weston James Suddreth (Complainant) agreed with Jake Gillis of Patterson Homes LLC to install flooring in Complainant’s home. There was no written contract.

On or about February 20, 2020, the Registrar received a Complaint containing five items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Nation. The jobsite inspection was performed on May 21, 2020.

Investigator Nation then issued a written directive on or about May 28, 2020 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 June 29, 2020.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: There are several areas throughout the house with noticeable lipping of planks, big enough to get a fingernail under. There is separation in multiple areas, high spots in some areas, and low spots in others that we cannot walk on without fear of breaking the locking mechanism on the floor. These areas are scattered throughout the entire house.

Investigator’s Observation: Verified. I observed noticeable lippage of vinyl flooring planks, along with high and low spots and several areas of loose planks with separation – throughout. The vinyl flooring planks should be level, secure, fit tightly and have no lippage.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards and/or manufacturers installation instructions. Respondent shall correct by the appropriate means.

Complaint Item 2: Product requires a 1/4" expansion joint along all walls. We have not pulled baseboards to check proper spacing there, however they did not install any quarter round against the cabinets, and all of the boards against cabinetry are butted up to the cabinet.

Investigator’s Observation: Verified. I observed areas of vinyl flooring planks to be butted up to the cabinet edges which did not have the proper expansion space of 1⁄4 inch and did not have any quarter round installed – throughout. The install of vinyl flooring planks should have proper expansion space of 1⁄4 inch, as required and these gaps will be covered with trim moldings after the floor is installed. At time of inspection, no deficiency observed or demonstrated regarding proper spacing at the baseboards, as only destructive testing (removal of baseboards) could determine this. The ROC does not conduct destructive testing and I could not determine or verify if this issue existed at the baseboards.

Following the issuance of the written directive, the two directives were not remedied prior to the June 29, 2020 deadline.

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).

At the commencement of the hearing all exhibits were entered into the record.

Complainant testified that due to his employment with Floor & Décor he was aware of “Patterson” and knew of some of the representatives from the company. He testified that he contacted Jake Gillis who prepared an estimate on March 6, 2018, for the work to be performed.

Complainant testified on April 21, 2018, work commenced on the project, but it was a “rollercoaster” and “messy”.

Complainant next testified that in mid-August of 2018, he contacted Mike Petrucelli of Patterson about problems with the floor. It was Complainant’s testimony that Mr. Petrucelli said that Patterson would fix the floor.

Complainant testified that after failing to hear from anyone at Patterson, he met with a “Raymond” who was wearing a “Patterson” shirt while at Floor & Décor. On or about April 17, 2019, “Raymond” checked the work and said he would do it right. But the job was never started, and “Raymond” left the company thereafter.

Complainant testified that he was able to reach Guyton Sherrill at Patterson, however the work was not completed once again and that led him to filing the Complaint with the Registrar.

It was Complainant’s testimony that he believed that Patterson Homes and Patterson Remodeling were the same company. When drafting the Complaint he simply searched for “Patterson” in the Registrar’s database and inserted the information accordingly

Complainant testified that on or about August 6, 2020, he and Jake Gillis drafted a document which was signed by Mr. Gillis. The document stated that Mr. Gillis was employed by Patterson Homes at the time of the contract, and there was a contract for the work done at Complainant’s residence.

Investigator Nation testified as to his involvement in the matter. Mr. Nation testified that at the jobsite investigation, Guyton Sherrill was present and informed Mr. Nation that there was no record of the work being done nor was there a contract.

Mr. Nation questioned Mr. Sherrill about the various people who Complainant mentioned above that assisted on the project. Mr. Nation testified that Mr. Sherrill “couldn’t advise as to when people were terminated.”

Mr. Nation then testified that after the jobsite investigation, he was able to contact “Ryan” at Patterson Remodeling. Mr. Nation testified that Ryan was to provide information as to when the employees were fired or resigned, but he never received the same.

Mr. Nation testified that in his experience, it would not be unusual for one employee to run a side job, but not five employees.

Respondent had no witnesses testify on its behalf, but Mr. DiCarlo proceeded by avowal. Mr. DiCarlo claimed that this was a case of mistaken identity as Patterson Homes, LLC and Patterson Remodeling, LLC were two separate entities with separate license numbers with the Registrar.

Administrative notice is taken of Respondent’s prior License record on November 5, 2020. Such prior License record reflects that Respondent’s License No. 245563 was first issued on July 15, 2008, is currently suspended. Such prior License record also reflects that there is 1 open complaint, namely the present complaint. As to Respondent’s License No. 0242914, that License was first issued on May 13, 2009 and is currently suspended, but has no open complaints.

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).

In this case, the Administrative Law Judge concludes that Complainant filed the Complaint against the incorrect company. While the facts of the case seem suspicious as to who is working for whom, it is clear that the estimate for work that was provided to Complainant stated “Patterson Homes”. This is a separate legal entity with a separate license number. Complainant should have completed a more thorough search of the Registrar’s website before filing the complaint. Further, it is curious as to why the written statement in August 2020, signed by Jake Gillis, but co-drafted by Complainant states “Patterson Homes”. If Complainant now realized his mistake with the company name, why did he not seek to amend his Complaint? The Complaint and Notice of Hearing on Contested Case were not amended to include Patterson Homes, and thus due process limits the action that can be taken against Patterson Homes at the present time as it has not had the proper notice of the Complaint.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar close as dismissed Complainant Weston James Suddreth’s complaint in case number 2020A-00874 against Respondent’s License No. 245563.

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.

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-137160-45720000Done this day, November 9, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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