ALJDEC decisions subject to certification as final

2020A-03220-CHC-ROC · Registrar of Contractors · 2021-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristina Blackledge,

COMPLAINANT

Rise Above Remodeling LLC,

License No. ROC 224941,

RESPONDENT

No. 2020A-03220-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 22, 2021, and January 27, 2021

APPEARANCES: Complainant Kristina Blackledge appeared on her own behalf. Respondent Rise Above Remodeling LLC was represented by Kerrie Droban.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Rise Above Remodeling LLC (Respondent) is the holder of License No. 224941 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 3, 2019, Kristina Blackledge (Complainant) entered into a contract with Respondent for a remodeling project at her home.

On or about July 4, 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 David Fagerburg. After a jobsite inspection, Investigator Fagerburg 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 Friday 9-18-2020.

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:

Compliant Item 1: Contractor did not inform homeowner of any necessary permits, did not provide information, direction, or guidance regarding obtaining permits, did not request/demand/or obtain permits, did not mention the need for permits to be obtained or on-site before the project begins, started work without permits, failed to respond to homeowner's emailed inquiry (dated 7/15/2019) regarding permits, and completed work without permits. Contractor is requesting final payment. Homeowner refuses as job is not complete without necessary permits.

Investigator’s Observation: The respondent acknowledged that there were no permits obtained for the work performed. The respondent cannot perform any work prior to any and all required building permits being obtained from the County of Maricopa prior to making corrections to this directive.

Governing Rule: A.R.S. § 32-1154 (A) (2) (b) A.R.S. § 32-1154 (A) (3)

Compliant Item 2: The new counter above wine fridge (next to pantry) is uneven and when homeowner pointed this out, contractor stated that it was "because the wall is uneven". Homeowner disagrees.

Investigator’s Observation: I was able to verify that the new counter above the wine fridge is uneven relative to the front of the cabinet. The respondent is to correct the countertop by appropriate means.

Governing Rule: A.R.S. § 32-1154 (A) (3)

Compliant Item 4: Poor grout work in master shower tile (uneven). Contractor stated that if tried to repair, it would "look worse" than it does. Homeowner disagrees.

Investigator’s Observation: The respondent acknowledged the excess lippage on the single tile and stated that the tile subcontractor has agreed to correct the excess lippage.

Governing Rule: A.R.S. § 32-1154 (A) (3)

Compliant Item 12: Underpart of kitchen cabinetry is mis-matched. Some are white (finished) and some are natural wood color (unfinished). They should match white (finished look). When asked for correction, contractor stated that was how cabinets are made. Homeowner disagrees.

Investigator’s Observation: The exposed bottoms of the 2 kitchen wall cabinets should be uniform. The respondent is to correct the mismatched cabinet bottoms by appropriate means.

Governing Rule: A.R.S. § 32-1154 (A) (3)

Following the issuance of the written directive, Respondent completed some of the corrective work. Respondent was unable to complete all of the corrective work prior to the deadline in the directive. After the deadline expired, Complainant allowed Respondent to perform more of the corrective work.

Complainant filed an addendum to the complaint to raise an additional complaint item. Investigator Fagerburg conducted a jobsite inspection on October 8, 2020, and concluded no corrective work needed to be completed as to the added item. At that time, Investigator Fagerburg also conducted a compliance inspection regarding the items in the initial directive. Investigator Fagerburg observed that Items 2 and 4 were completed at the time of the compliance inspection, but Items 1 and 12 had not been completed.

Investigator Fagerburg submitted a pencil cite referring the matter to Legal.

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(A); and A.R.S. § 32-1154(A)(22).

Investigator Fagerburg testified that after the compliance inspection, he was informed that Respondent had obtained a plumbing permit, which was issued on October 20, 2020, and had been inspected and approved. Investigator Fagerburg understood an electrical permit had not been obtained and he was uncertain if one was required for the project at issue. Investigator Fagerburg also noted that the cabinet issue identified in Item 12 had been corrected after his compliance inspection. Investigator Fagerburg stated that the citation issued in this matter did not include an alleged violation of A.R.S. § 32-1154(A)(2) relating to a lack of permit and that was an oversight on his part.

Complainant testified as to her issues with Respondent’s work on the project. Complainant noted that Respondent did not comply with the written directive by the deadline provided. Complainant acknowledged that she allowed Respondent to complete the cabinet change after the deadline expired and Complainant did not argue that the corrective work Respondent completed was not appropriate. Rather, Complainant admitted that the manner in which Respondent corrected the issue was an upgrade to the cabinet she originally ordered and paid for. Complainant noted that a permit had not been issued or approved for the electrical work on the project.

Bret Buckner, Respondent’s Owner, testified that many homeowners elect to start a project without a permit to enable the project to proceed quickly. Mr. Buckner indicated he had initially been advised by the plumbing subcontractor that a permit was not required, but admitted that a plumbing permit was required. Mr. Buckner denied that an electrical permit was required because Respondent did not alter the electrical lines, but just moved the light switches over to the next wall. Mr. Buckner stated that he had specifically asked the electrical subcontractor about the need for a permit after the directive was issued and was informed again that a permit was not needed.

Skyler Buckner, Partner, explained that the issue with the cabinets was that the visible color under the upper cabinets did not match. Mr. Buckner stated that the way the cabinets were manufactured did not allow for the cabinets to match. Respondent was required to upgrade the non-matching cabinet to a glass-front cabinet so the underside would match the existing cabinet. Mr. Buckner stated that the time needed to manufacture the upgraded cabinet exceeded the deadline in the directive.

Administrative notice is taken of Respondent’s prior License record on February 10, 2021. Such prior License record reflects that Respondent’s License No. 224941 was first issued on October 18, 2006, 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’s initial work was not in conformity with the Registrar’s standards. However, as of the date of the hearing, the workmanship issues had been corrected in accordance with Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner initially. However, because the work was later corrected, no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) should be found against Respondent.

To the extent Complainant argued the failure to obtain an electrical permit constituted a workmanship issue, Complainant failed to establish by a preponderance of the evidence that an electrical permit was required for the work performed. Investigator Fagerburg stated he was uncertain a permit was needed and Bret Buckner testified the electrical subcontractor confirmed a permit was not needed. Complainant did not offer any evidence other than her own opinion that a permit was required.

While Respondent did not complete the corrective work by the deadline in the written directive, the reason for the delay was beyond Respondent’s control. Further, Complainant allowed Respondent to continue performing corrective work after the deadline had passed. As of the time of the hearing, Respondent had completed all the corrective work. Therefore, Complainant failed to establish 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

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2020-03220 against Respondent’s License No. 224941 based on Respondent’s compliance with the written directive.

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, February 16, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000