ALJDEC decisions subject to certification as final

2020A-01927-CHC-ROC · Registrar of Contractors · 2020-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gracia Ayala,

COMPLAINANT

T K Quality Builders LLC,

DBA: Anthony’s Fine Homes,

License No. ROC 247641,

RESPONDENT

No. 2020A-01927-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2020, with the record held open until September 4, 2020 to allow Respondent to cure the defects.

APPEARANCES: Complainant Gracia Ayala, appeared on her own behalf via Google Meet. Jacquelyn Parker appeared as a witness for Complainant via Google Meet. Anthony Gumma appeared via Google Meet on behalf of Respondent T K Quality Builders LLC. Jack Grimm, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

T K Quality Builders LLC (Respondent) is the holder of License No. 247641 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 6, 2018, Gracia Ayala (Complainant) signed a contract with Respondent to build a casita on her property.

On or about April 16, 2020, the Registrar received a Complaint containing twenty items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on May 5, 2020.

Investigator Grimm then issued a written directive on or about May 6, 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 5, 2020.

. . .

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

Complaint Item #1: Contractor hired to build a 750 SF casita which was supposed to have been finished be October 2018.

Investigators Observation: Work is incomplete and property owner states the respondent has not been on site for weeks. Project needs to be completed per approved plans and contract with all code required inspections with final approval from the code enforcement governing jurisdiction.

Governing Rule: 32-1154 (A)(3) Incomplete work

Complaint Item #6: Damages were caused to the main house kitchen and garage which need to be repaired.

Investigators Observation: The new addition was attached to the north end of the home. Property owner states that during the construction process the end was not weathered in where the attachment was made and during rain storms several leaks occurred. It was stated that they believe the leaks have been corrected with some of that corrective work performed by others hired by the property owner. Water damage is still present on the north wall of the garage and kitchen that is in line with the new addition. All water damaged areas need to be repaired and repainted.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #7: The kitchen and bathroom backslash had to be replaced due to poor workmanship. Still not done.

Investigators Observation: Poorly installed backsplash in the kitchen (matted tiles) have been removed with portions reinstalled very poorly. Backsplash tile in the bathroom was removed. Backsplash tile in both locations need to be completed.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #8: Cabinets missing hardware, different color than agreed upon, poorly stained.

Investigators Observation: No hardware is on cabinets. Complete hardware as agreed. The cabinets are stained a dark color. This investigator was not presented with any documentation regarding any selected color different than what is in place.

Governing Rule: 32-1154(A)(3) incomplete work

Complaint Item #9: Crown moldings with big gaps and small patch up pieces. Unfinished tile work under kitchen counter.

Investigators Observation: Kitchen cabinets are poorly installed and do not appear complete. Crown molding is poorly installed with large gaps at joints. Cabinet boxes have odd spacing with gaps in locations. The cabinet boxes one to another are not straight or tight to each other. I was not presented with any documents as to the kitchen cabinet layout. Correct poor fit and workmanship of cabinets and trim by appropriate means. Tile work up knee wall under bar top is incomplete and poorly installed.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #10: Missing bathroom toilet, hardware, sink, backsplash, wall poorly textured.

Investigators Observation: All items listed are incomplete. Complete missing items and correct poorly or damaged drywall locations.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #11: Missing front door and laundry room door. Investigators Observation: A door is in place in the front door location. Property owner states it is a temporary door and the door does not appear to be a typical front door. The doors is installed incorrectly and drags on the installed floor tile. Laundry room location does not have doors installed. Complete door installation.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #12: Missing AC unit, heating, thermostat, pendant light and TV electrical connections and switches.

Investigators Observation: Exterior compressor for split HVAC system is not in place. Air handler is installed in the attic. HVAC system is incomplete with registers missing and no thermostat. Complete system. Property owner states at location on south wall were a door was to be installed into the existing portion of the home it was agreed that the door would not be cut in but a switched pendant light was to be installed in this nook area. The light a switch is not in place. General electrical switches, outlets TV wires and trim are incomplete. When attic space was observed for the HVAC unit it was observed that no ceiling insulation was in place and needs to be completed per approved plans and contract.

Governing Rule: 32-1154(A)(3) poor or incomplete work

Complaint Item #13: Missing closet doors tracks and top covers. Ceiling light and closet light all on one switch (BR2).

Investigators Observation: Complete doors per plans and contract. Lighting in south bedroom (BR2) and attached closet all turn on with switch at bedroom door. Closet should be on separate switch or installed per approved plans.

Governing Rule: 32-1154(A)(3) poor or incomplete work

Complaint Item #14: Plumbing and electrical not complete.

Investigators Observation: Observed locations of incomplete work regarding plumbing and electrical that needs to be complete.

Governing Rule: 32-1154(A)(3) poor work

Complaint Item #15: Windows and door trims cracked. Ceiling cracks, lots of dents throughout inside and out.

Investigators Observation: Observed incomplete work regarding completion of finishes and repairs from general construction work that needs to be completed.

Governing Rule: 32-1154(A)(3) poor or incomplete work

Complaint Item #17: Missing front and back gates. Debris, trash removal and leveling off.

Investigators Observation: Return walls at the front location of the home were removed to accommodate the new construction. Property owner states new return walls (2) were to be installed using a 3-foot gate that was present on site in a specified location at front north side yard. Complete per agreement. Back gate is a large drive through from the alley that was in place prior to the start of the construction project that appears to have been damaged or is out of adjustment due to usage regarding access for equipment or supplies. Readjust or repair for proper functionality. Observed a large pile of what appears to be construction debris that needs to be cleaned up.

Governing Rule: 32-1154(A)(3) poor work

All errors contained in the original.

Following the issuance of the written directive, no attempts were made by Respondent to fix the items prior to the June 5, 2020 deadline.

On June 10, 2020, Investigator Grimm performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Grimm noted that Respondent failed to comply with all of the Directives. See Compliance Jobsite Inspection Notes.

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 Grimm testified that on August 11, 2020, a pre-hearing inspection was completed, and several items were subsequently completed after the June 5, 2020 deadline, but some issues still existed or new issues appeared after the correction (i.e. cracked tiles).

Complainant testified that she just wanted the project completed. She paid over $103,000.00 and the project is not completed.

Complainant further testified that the work did not timely commence, and the workers would sporadically show up to work on the project. Further, Complainant testified that Mr. Gumma rarely appeared at the jobsite.

Mr. Gumma testified that there were several delays which attributed to the slow start. Mr. Gumma testified that it took seven months to obtain the proper permit and that some electrical work (which Complainant separately contracted for) took approximately five months when the project could have been completed in two weeks.

Mr. Gumma also stated that the timeliness of the work was affected by the Coronavirus pandemic per the “stay at home” orders from the Arizona Governor.

Mr. Gumma also testified that he did not align himself with quality workers as there was short supply of the same during this time.

At the conclusion of the hearing, Mr. Gumma stated he wanted another chance to complete the work and believed that it could be accomplished. Complainant too agreed that a chance should be given and the parties stipulated to keep the record open in this matter, and to provide the Office of Administrative Hearings with a joint statement on September 4, 2020.

On September 8, 2020, Complainant filed a statement informing that the work had again not been timely completed.

On September 9, 2020, Mr. Gumma informed the Office of Administrative Hearings that he believed all items had been addressed and completed and the casita was ready for occupancy.

With no clear agreement on whether the issues have been satisfied, the Administrative Law Judge will make the following orders below.

Administrative notice is taken of Respondent’s prior License record on September 9, 2020. Such prior License record reflects that Respondent’s License No. 247641 was first issued on August 6, 2008, and is currently suspended.

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. While Respondent corrected several of the directives, they were not completed in a timely manner. Also, the generosity of Complainant to provide even more additional time to correct the issues was again taken advantage of by Respondent. 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 failed 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).

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. 247641 for a period of four 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)(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, September 23, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000