ALJDEC decisions subject to certification as final

2020A-02583-CHC-ROC · Registrar of Contractors · 2021-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cadmus Kamal Kyrala,

COMPLAINANT

White Star Construction LLC,

License No. ROC 319608,

RESPONDENT

No. 2020A-02583-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 16, 2021

APPEARANCES: Complainant Cadmus Kamal Kyrala appeared and was represented by Louis W. Camp, IV. Patrick Zawacky, Owner and Qualifying Party, appeared on behalf of Respondent White Star Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

White Star Construction LLC (Respondent) is the holder of License No. 319608 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 7, 2020, Cadmus Kamal Kyrala (Complainant) entered into a contract with Respondent for the renovation of a bathroom in his home for a total contract price of $7,000.00. During the project, a change order of $300.00 was approved by Complainant. Complainant paid the contract in full.

On or about May 26, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. The Registrar assigned the complaint to Investigator Lisa Melton.

On or about June 24, 2021, after a jobsite inspection, Investigator Melton 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 July 24, 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 reasons, 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 1: Shower tile was removed and concrete floor was drilled open. Initially they were going to put in bath on top of bare soil. When I remarked on that they reportedly added quick set and threw the tub in within a few hours. They did that part so quickly I could not see what was actually done under the tub or what state they left it in. They did not properly level the tub and set it to be supported. Tub visibly moves when supporting weight or when filled indicating there is a lack of proper support under the tub.

Investigator’s Observation: Invoice identifies “Demo tile pan ... move drain for new tub”. This work requires a permit and associated inspections. Respondent did not appear for this inspection and did not provide permit/inspection records prior to this inspection. Project address is in Glendale, however, the City of Glendale advised that the project address is under the City of Phoenix building authority. City of Phoenix shows no permits for this address. Respondent should comply with all requirements of the local building authority, relative to the scope of work for this project, and provide copies of permit/inspections records to the Registrar of Contractors (Investigator Lisa Melton). Tub was not easily moveable. Tub is sloped slightly toward drain.

. . . .

Compliance Item 4: Drain was originally not attached properly causing water to leak out underneath the tub. They had to come out twice to fix this. They filled the tub and left it full of water after they added the sealant to the drain. They did this to weight the tub down while they added the Locktite in the gaps around the tub. We are concerned that it was not allowed to dry properly before adding the water. They instructed us to leave the water in there for several days. When we drained the tub, the sealant soon showed a cracked and yellowed appearance. It also appears to be separating from the drain and we are worried it may leak in the future.

Investigator’s Observation: Invoice identifies “Demo tile pan ... move drain for new tub”. This work requires a permit and associated inspections. Respondent did not appear for this inspection and did not provide permit/inspection records prior to this inspection. Project address is in Glendale, however, the City of Glendale advised that the project address is under the City of Phoenix building authority. City of Phoenix shows no permits for this address. Respondent should comply with all requirements of the local building authority relative to the scope of work for this project and provide copies of permit/inspections records to the Registrar of Contractors (Investigator Lisa Melton). Sealant meets workmanship standards.

. . . .

Compliance Item 5: Faucet and fixtures were not originally properly caulked and secured. They did add caulk to some fixtures when they came to fix the drain. Faucet is still not properly caulked.

Investigator’s Observation: Tub faucet is not completely caulked. Missing caulk is a workmanship issue. Respondent should correct by appropriate method.

. . . .

Compliance Item 10: The bathroom fan they installed has insulation falling into the bathroom from the attic space. The vent duct does not extend to the outside of the attic and is venting moisture-laden air into the attic space. We are concerned this could lead to mold in the future. Also as condensation develops on the inside of the metal duct which is angled straight up and out of the vent that it will drip back onto the fan also possibly contributing to mold and rust. The duct is angled towards an existing air vent in the attic space and is not secured to the outside of the house. They originally represented that drilling a hole and venting the bathroom would not be a problem. But when we brought this to their attention they said it would result in “a big ugly hole in our stucco”. This is another reason we are worried about having them do any further repairs because I don’t want them to do damage to our house and then say that’s what we asked for.

Investigator’s Observation: Invoice identifies “Add can light above shower on its own switch. Install exhaust fan on its switch”. There was no existing vent. This work requires a permit and associated inspections. Respondent did not appear for this inspection and did not provide permit/inspection records prior to this inspection. Project address is in Glendale, however, the City of Glendale advised that the project address is under the City of Phoenix building authority. City of Phoenix shows no permits for this address. Respondent should comply with all requirements of the local building authority, relative to the scope of work for this project, and provide copies of permit/inspections records to the Registrar of Contractors (Investigator Lisa Melton). Vent must terminate outside of attic space.

. . . .

Compliance Item 11: Due to the progression of oversights that we have identified, we are also concerned about the status of the pipes. They fixed a segment of drain pipe which had been improperly sealed by the previous house owner as they had to dig in and move inspection and did not provide permit/inspection records prior to this inspection. Project address is in Glendale, however, the City of Glendale advised that the project address is under the City of Phoenix building authority. City of Phoenix shows no permits for this address. Respondent should comply with all requirements of the local building authority, relative to the scope of work for this project, and provide copies of permit/inspections records to the Registrar of Contractors (Investigator Lisa Melton).

On or about July 21, 2021, Respondent left a voicemail for Investigator Melton requesting that the July 24, 2021 deadline be extended. Investigator Melton checked with the City of Phoenix and discovered that Respondent had not yet obtained a permit for the project.

On or about July 22, 2021, Respondent obtained a permit for the project.

After the deadline in the directive expired, Investigator Melton was notified the corrective work had not been performed.

On or about July 29, 2021, Investigator Melton performed a compliance jobsite inspection at the jobsite. Investigator Melton noted that at the time of the inspection, the tub and surround had been removed and were standing against the wall. The floor tile of the shower that existed prior to Respondent’s original installation of the tub was partially removed to dirt and exposed piping. Respondent had obtained a permit, but the original work did not pass inspection and the corrective work was not complete or passed inspection.

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(B); and A.R.S. § 32-1154(A)(22).

Investigator Melton testified as to her observations of the project.

Complainant testified that after Respondent performed the work initially, he noted numerous problems including the shifting bathtub, the failing caulk, and a leaking drain. Complainant indicated that after Respondent attempted to correct the work, the same problems existed and/or recurred. Complainant stated that after Respondent failed to properly perform the corrective work following the issuance of the written directive, he obtained several quotes to correct the work. Complainant contracted with Home Depot and an electrician to complete the bathroom as the open hole in his home presented a safety concern for his family. Complainant paid $6,999.00 to Home Depot and $398.00 to the electrician for a total cost of $7,397.00 to complete the project properly.

Mr. Zawacky acknowledged that he could not dispute any of the facts presented by Investigator Melton or Complainant regarding the project. Mr. Zawacky stated that he should obtained permits prior to performing the work and he should not have waited until the day before the deadline to obtain the permit. Mr. Zawacky admitted that this should not have happened, but asserted this was the only complaint that had been filed against Respondent’s license in the three years it had been licensed.

Administrative notice is taken of Respondent’s prior License record on April 21, 2021. Such prior License record reflects that Respondent’s License No. 319608 was first issued on May 7, 2018, and is active. Such prior License record also reflects that there were no other 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 performed work on the project without required permits having been issued by the City of Phoenix. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(2)(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(B).

The evidence established that Respondent did not complete the corrective work following the written 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 $7,397.00.

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. 319608 for a period of ten (10) days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $7,397.00 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, April 21, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000