ALJDEC decisions subject to certification as final

2020A-04081-CHC-ROC · Registrar of Contractors · 2021-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Preston McCormick,

COMPLAINANT

Bath Planet of Tucson LLC,

License No. 305199,

RESPONDENT

No. 2020A-04081-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 22, 2021

APPEARANCES: Complainant Preston McCormick appeared via Google Meet. Darrin Weathersby appeared via Google Meet on behalf of Respondent Bath Planet of Tucson, LLC. Jim Vildusea, investigator for the Registrar of Contractors, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Bath Planet of Tucson, LLC (Respondent) is the holder of License No. 305199 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 21, 2020, Preston McCormick (Complainant) signed a contract with Respondent for a shower remodel.

On or about August 23, 2020, the Registrar received a Complaint containing two items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Vildusea. The original inspection was performed on October 22, 2020.

Investigator Vildusea then issued a written directive on or about October 27, 2020 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 November 23, 2020.

. . .

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

Complaint Item 1: ‘Side of shower was cut and installed incorrectly.

The installation gives the appearance that the wall behind the side of the shower was constructed incorrectly, but measurements and an inspection have proved that the side of the shower is incorrect.’

Investigator’s Observation: Verified:

At the jobsite inspection, each of the three shower walls are made of a single piece solid surface material.

The issue described by the complainant is with the left side wall panel of the shower.

The left side panel of the shower is 3/4 inch wider at the top than at the bottom.

The outer edge of the left side panel is 1/2 inch out of level in 4 feet.

The back wall of the shower is plumb.

Reference Pictures: 4, 5, 6, 7

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9- 108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “The grab bar installed measures 16 inches.

The contract calls for a 24 inch grab bar”

Investigator’s Observation: Verified: The contract specifies “(1) 24” grab bar BN)”

Installed is an 18-inch bar; not a 24 inch.

Reference Picture: 3

Governing Rule: A.R.S. § 32-1154 (A) 2: Departure from or disregard of: (a) Plans or specifications...

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

All errors contained in original.

The repairs were not completed by the November 23, 2020 deadline.

On February 18, 2021, Investigator Vildusea performed a pre-hearing inspection and reported that the two items were not repaired.

On December 4, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), and A.R.S. § 32-1154(A)(12), namely A.R.S. §32-1158.

Investigator Vildusea testified as to the above and believed that he provided enough time for Respondent to complete the Directive.

Investigator Vildusea testified that he was not notified Respondent as to any delays in obtaining the product.

Complainant testified on his behalf and submitted 32 exhibits into evidence.

Complainant testified that on June 4, 2020, Respondent’s installers showed up unannounced ready to perform the work, but declared that their best workers were “on it”.

Complainant then testified that after the installation, he noticed that the left side panel looked problematic. His belief was confirmed when we went to buy a shower curtain and it fell down.

Complainant testified that he contacted Respondent and after a delay, Mr. Weathersby came to inspect the shower in July 17, 2020. Complainant then testified that on July 28, 2020, he received a text message from Mr. Weathersby stating that he believed that the shower walls were installed correctly and within the tolerance of a normal job.

Next, Complainant testified that it had Arizona Home Inspections, LLC, to inspect the shower. Complainant testified that it was their opinion that shower walls were out of plumb.

Complainant testified that Respondent did not make the required repairs and informed Investigator Vildusea of the same on November 25, 2020.

Complainant testified that on December 7, 2020, Mr. Weathersby informed him that the replacement wall had arrived.

Complainant testified that the parties could not arrange a suitable time for installation, and that Respondent’s offices were closed for the holidays.

Complainant testified that he wanted no further work performed by Respondent and requested a full refund.

Mr. Weathersby testified that he admitted communication should have been better. He testified that some of that was he only sees his salesmen one to two times per month and that Complainant was sending messages to “Susan” who left the company and did not forward her messages.

Mr. Weathersby testified that he was confused between the Written Directive requirements and the Answer requirement in the Citation.

Mr. Weathersby testified that he did not believe the inspection reports from Investigator Vildusea and Arizona Home Inspections, LLC, and was convinced the wall was installed correctly.

Mr. Weathersby testified that he did not recall if he notified Investigator Vildusea or Complainant about the delay in ordering the wall.

Finally, Mr. Weathersby testified that he would like the opportunity to make it right.

Administrative notice is taken of Respondent’s prior License record on February 24, 2021. Such prior License record reflects that Respondent’s License No. 305199 was first issued on May 6, 2016, and is currently active. Such prior License record also reflects that there are 2 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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards and Respondent failed to contact Complainant or Investigator Vildusea to inform them of the delays in obtaining the replacement walls, and provided no legal excuse for the same. A pre-planned company shutdown for vacation and getting confused over the response time are not legal excuses. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(1).

There was no evidence presented Complainant or Investigator Vildusea that Respondent violated A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158.

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. 305199 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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 30 days from the date of that certification.

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-137160-45720000Done this day, March 1, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000