ALJDEC decisions subject to certification as final

2020A-05630-CHC-ROC · Registrar of Contractors · 2021-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelli Paladini,

COMPLAINANT

Hancock Builders, LLC

License No. ROC 302631,

RESPONDENT

No. 2020A-05630-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 16, 2021, with further hearing on September 21, 2021

APPEARANCES:

July 16, 2021: Kelli Paladini appeared on her own behalf. Brian Paladini was present. Renee Anderkin and Arnela Hansen appeared as witnesses for Complainant. Julianne Wheeler, Esq. represented Hancock Builders, LLC. DJ Hancock and Ron Collins appeared as witnesses for Respondent. Arizona Registrar of Contractors Investigator Chris Fultz appeared as a witness.

September 21, 2021: Kelli Paladini appeared on her own behalf. Brian Paladini was present. Julianne Wheeler, Esq. represented Hancock Builders, LLC. DJ Hancock, Ron Collins, Leonard Eberwein, Nancy Hartz, and Jason Sitkiewicz appeared as witnesses for Respondent.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Hancock Builders, LLC (“Respondent”) is the holder of License No. 302631 issued by the Arizona Registrar of Contractors (“Registrar”).

In February 2020, Kelli Paladini (“Complainant”) purchased a newly constructed home from Respondent.

On or about December 2, 2020, the Registrar received a Complaint against Respondent from Complainant alleging damage caused by Respondent and poor work with respect to a repair.

The Registrar assigned the Complaint to Investigator Chris Fultz. On December 28, 2020, Investigator Fultz conducted a jobsite inspection. Investigator Fultz’s jobsite inspection notes indicate the following in pertinent part:

During repairs from a previous ROC directive, damage was caused to the guest bathtub resulting in a repair being performed on that chip. The tub was repaired on 10/13/2020. On 10/26/2020 Kelli stated her husband had used the shower and noticed the large impact damage to the tub.

Ron from Hancock builders provided a statement saying that the work was completed on 10/13/2020 and the hired cleaners were there on 10/16/2020 and there were no reports of damage made until 10/26/2020.

This is in fact after the 10-day requirement for these types of surfaces.

I am unable to determine the cause of this damage and cannot hold the contractor responsible. As for the repair issue of the chip being discolored, I did notice the coloring a bit off. But I can’t order that to be repaired with the other damage because the tub is not usable at this time.

This case is closed at this time.

Compliance Item: 1 - Front bathroom tub repair doesn't blend with color of tub and looks patchy

Investigator’s Observation: The color on this repair does appear to have

not been matched properly.

. . .

Compliance Item: 2 - Front bathroom tub damage caused by workers that were removing marble for recent previous ROC complaint

Investigator’s Observation: I am unable to determine the cause of this damage.

All errors in original.

On January 11, 2021, Investigator Fultz issued a letter to the parties advising that the Complaint was closed pursuant to the jobsite inspection findings.

Investigator Fultz testified that this matter arose from a previous complaint filed by Complainant regarding a bathtub repair made by Respondent. Investigator Fultz testified that the repair that was ordered to be performed to the bathtub in the initial case was accepted by Complainant and the matter was closed after Complainant’s acceptance of the repair.

Investigator Fultz testified that during his December 28, 2020 jobsite inspection for this Complaint, he observed damage to the bottom of the bathtub that “looked like someone hit it with a hammer,” that the circular damage is consistent with a hammer hit, and that the damage is not consistent with repair work to a bathtub. Investigator Fultz further testified that Complainant notified the Registrar of the damage beyond the ten day period after Respondent had performed its repair, and therefore, he could not determine who caused the damage. Investigator Fultz opined that the damage was not able to be repaired. However, Complainant had contacted the Registrar and the Registrar re-opened the matter and requested that Investigator Fultz issue a Written Directive.

On February 1, 2021, Investigator Fultz issued a Written Directive 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 .

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

Compliance Item: 1 - Front bathroom tub repair doesn't blend with color of tub and looks patchy

Investigator’s Observation: The color on this repair does appear to have not been matched properly. It will need to be repaired.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Compliance Item: 2 - Front bathroom tub damage caused by workers that were removing marble for recent previous ROC complaint

Investigator’s Observation: After review, the administration determined that this will need to be repaired.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

All errors in original.

Investigator Fultz testified regarding the photographs he took at the December 28, 2020 jobsite inspection contained within the agency record, of which administrative notice was taken. Investigator Fultz testified that based upon his experience in his previous profession as a detective, he believes that the damage is consistent with a hammer hit with a “significant amount of force.” Investigator Fultz explained that he did not order a replacement of the bathtub because Complainant’s notification to the Registrar was beyond the ten day requirement after corrective work was performed. However, Investigator Fultz’s supervisor instructed him to order a repair only.

Investigator Fultz testified that on February 17, 2021, Respondent forwarded an email received from Flying Colors Surface Repair (“Flying Colors”), the contractor Respondent utilizes for surface repairs. The email indicates the following in pertinent part:

Hall Tub – previous repair at back deck is failing. Not sure why. Nomeowner says it always looked bad as soon as the tech was done. I find it hard to believe but it can be repaired. The real problem is there is a large dent in the center of the floor with cracks all around it, 10” X 7” area and cracks around drain. Homeowner says dent was there after marble was replaced and now is cracking down the center of the floor. Also the cracks around drain are starting to show and are getting worse.

There is nothing we can do with all the damage that is in this tub it is unrepairable.

All errors in original.

Investigator Fultz referred the matter to the Registrar’s Legal Department. 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). Investigator Fultz testified that Respondent was only charged with a workmanship violation “so Complainant could have her day in court” and therefore, Respondent “needed to be cited for something.”

Investigator Fultz testified that he did not conduct a compliance or pre-hearing inspection. Investigator Fultz testified consistently with the findings contained in the Written Directive and his notes. Investigator Fultz emphasized that the damage to the bathtub is not consistent with any repair work that was performed to the bathtub. Investigator Fultz testified that Complainant had made statements during the course of his investigation that she wanted a new bathtub.

Complainant testified regarding the previous complaint and the repair work that was performed by Respondent. Complainant testified that during the course of that repair work, Respondent’s subcontractor dropped a “big piece of marble” into the bathtub which caused a “chunk on the side of the tub.” The subcontractor informed Ron Collins, Respondent’s qualifying party and project manager. Complainant asserted that she accepted the repair work prior to the completion of the work, and “did not go through [the repairs] with a fine tooth comb and regrets it completely.” The Complaint was closed on October 16, 2020, after Complainant’s acceptance of the work.

Complainant testified that on October 25, 2020, her husband used the shower and noticed a “dip in the rub.” Complainant contended that the “dip” was not visible because there had not been any water running in the bathtub until that time and the damage became apparent after water came in contact with it. Complainant asserted that the bathtub was not damaged prior to Respondent performing its work and that her children do not utilize that bathroom. Complainant asserted that Respondent’s subcontractor, MarLam Industries (“MarLam”), removed the marble surround with a hammer and she believes MarLam caused the damage to the bathtub. However, the marble surround had been removed and replaced by October 12, 2020, and Flying Colors repaired the chip on October 13, 2020, Respondent’s cleaners cleaned the bathroom on October 16, 2020, and Complainant accepted the work. It was not until October 26, 2020, that Complainant reported the damage to the bottom of the bathtub.

DJ Hancock, Vice-president of Operations for Respondent, testified that Respondent has used the same subcontractors for the past five to six years on every one of Respondent’s construction projects, and that because of those relationships, if a subcontractor caused any damage, that damage would be disclosed, such as when MarLam dropped a piece of marble in Complainant’s bathtub. MarLam informed Mr. Collins of the damage, and Mr. Collins contacted Flying Colors to perform the repair work. Mr. Hancock testified that Complainant signed off on the repair work on October 16, 2020, and on October 26, 2020, Complainant contacted Respondent regarding the damage to the bathtub.

Mr. Hancock testified that after the repair work was completed on October 13, 2020, Respondent had its cleaning crew perform a final cleaning that included vacuuming and wiping surfaces. Mr. Hancock explained that heavy tools are not utilized in the cleaning process and that cleaning sprays and rags are used.

Mr. Hancock testified regarding a November 11, 2020 email that Mr. Collins sent to Complainant that delineated the timeline of events and advised Complainant that Respondent would not perform and further repairs to the bathtub. The email states the following:

Its been decided that Hancock is not going to repair that chip in the hall rub. The time line of repairs don’t match up. Shower enclosure was reinstalled on 10/12/2020 and they noticed the 1 chip on top of the tub deck. That chip was repaired on 10/13/2020. Cleaners were there on 10/16/2020 to clean the house and they didn’t notice any chips in the hall tub. Then on 10/26/2020 your husband calls and says while he was taking a shower in the hall bath he finds a chip in the rub. There is to many days in between that the tub could have been damaged by others and not our subcontractors.

All errors in original.

Mr. Collins testified that it is typical for trades to notify Respondent if any damage is done during a trade’s scope of work. In this case, Mr. Collins testified that Flying Colors performed the repair, and had there been additional damage, Flying Colors would have notified Respondent of such damage. The damage that was repaired by Flying Colors was caused when a 3/16” thick marble tile fell and chipped the edge of the bathtub. There was no other damage to the bathtub other than the one chip that was repaired by Flying Colors. Mr. Collins testified that the damage could not have been caused by Respondent’s cleaning crew because they do not use tools when cleaning, as they only use rags and squeegees, and moreover, the cleaning crew is instructed to never clean anything that is damaged. Mr. Collins testified that the cleaning crew and Flying Colors would have reported any damage had the damage existed at that time.

Mr. Collins testified that none of Respondent’s subcontractors were in Complainant’s home between October 16, 2020 and October 26, 2020.

Mr. Collins testified about his experiences with Complainant and the detailed nature of Complainant’s inspections of various materials utilized and work performed by Respondent. Mr. Collins testified that Complainant inspected everything so carefully and took pictures of everything and opined that given Complainant’s detailed nature, there was no way she could have missed a dent that size in the bathtub. Mr. Collins testified that not seeing that kind of damage is inconsistent with Complainant’s nature.

Mr. Collins testified that the notion of a hammer having caused the damage was brought up by Complainant’s husband who said that “it looked like someone hit it with a hammer.”

Lenny Eberwein, owner of Flying Colors, testified that he has been performing surface repairs for 28 years. Mr. Eberwein testified that on October 13, 2020, his technician repaired the chip on the back left top of the tub due to marble hitting it. Mr. Eberwein explained that pursuant to Flying Colors’ procedures, the technicians are required to inspect the area prior to performing any repairs, and therefore, had the damage existed, the technician would have noticed it and reported it. Complainant alleged that there were towels and debris in the tub during the repair, however, Mr. Eberwein testified that the technician would have removed those items in order to perform the inspection, as it is standard practice to wipe the surface and rinse it with water. Mr. Eberwein was confident that the technician followed all proper procedures.

On February 16, 2021, Mr. Eberwein was called back because the repair “did not look good.” Mr. Eberwein explained that the repair looked as though a “rag went across” the repair while it was curing. Mr. Eberwein testified that on that date, he saw the dent and cracks in the floor of the tub that were not there when Flying Colors was last at the home on October 13, 2020. Mr. Eberwein opined that “it seemed odd” because the dent and cracks were “real obvious.” Mr. Eberwein testified that this damage is beyond repair.

Nancy Hartz, the Controller for Cohaco Building, Respondent’s supplier for bathroom supplies, and the entity that removed and installed the shower enclosure at Complainant’s home, testified that its workers do not use hammers during removal and installation, and that there were no notations of any damage to the tub.

Jason Sitkiewicz, Vice-president of MarLam, testified that MarLam provides countertop and shower surrounds for Respondent. Mr. Sitkiewicz testified that one of his employees dropped a small piece of marble that hit the side of the bathtub and that the supervisor was immediately informed of the incident, MarLam informed Mr. Collins, Mr. Collins arranged for Flying Colors to perform the repair and MarLam paid for the repair. Mr. Sitkiewicz testified that MarLam’s crews do not use hammers to remove or install products, but rather use a pry bar, a 5-in-1 spatula, and a scraper. Mr. Sitkiewicz also testified as to his experience with Complainant and that she was “very detailed” and “pointed out everything that needed to be repaired or replaced.”

Administrative notice is taken of Respondent’s prior License record on September 30, 2021. Such prior License record reflects that Respondent’s License No. 302631 was first issued on January 5, 2016, and is active.

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 Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). A party asserting an affirmative defense has the burden of establishing the affirmative defense.

The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.

“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). A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

A.R.S. § 32-1154(A) provides:

The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

A.A.C. R49108(A) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Regarding the Registrar’s charge of poor workmanship, Complainant focused the presentation of her case on the damage to the bottom of the bathtub. Complainant did not address the Complaint item regarding the “tub repair doesn't blend with color of tub and looks patchy.” Regarding the damage to the bottom of the bathtub, the Administrative Law Judge concludes, based upon the credible evidence of record, that Complainant failed to present probative or substantial evidence that the damage was attributable to work performed by Respondent rather than an intervening, unknown cause. The evidence of record established that Complainant accepted the repairs performed by Respondent and did not report the damage until ten days later. Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and therefore, it is appropriate to dismiss this matter.

RECOMMENDED ORDER

It is recommended that the Registrar dismiss Complaint Number 2020-05630 against Respondent.

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 forty (40) days from the date of that certification.

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

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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