ALJDEC decisions subject to certification as final

2020A-05646-CHC-ROC · Registrar of Contractors · 2021-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wendy Ann Olson,

COMPLAINANT

Apart Builders & Restoration LLC,

License No. ROC 259394,

RESPONDENT

No. 2020A-05646-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 13, 2021

APPEARANCES: Wendy Ann Olson on her own behalf; Patsy Martorelli for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 12, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 13, 2021 at the Office of Administrative Hearing.

Through the Notice of Hearing ROC alleges that Respondent Apart Builders and Restoration LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 259394 issued by ROC. Patricia Martorelli is Respondent’s owner.

Complainant is Wendy Ann Olson.

At issue is Respondent’s work installing a tub at Ms. Olson’s house.

Ms. Olson provided the tub itself.

The parties did not have a written contract and dispute the scope of work and why there was no contract. Ms. Martorelli asserts that Ms. Olson would not sign a contract and Ms. Olson asserts that she was never provided one to sign. The evidence shows that the project was related to an insurance claim that Ms. Olson filed, but Ms. Olson did not include in her complaint any allegation that that work was deficient.

On or about December 10, 2020, Ms. Olson filed with ROC a complaint against Respondent alleging abandonment and poor work. Ms. Olson declared that the parties entered a contract on September 28, 2020, the work started on July 11, 2020 [sic], the work stopped on November 20, 2020, the contract was in the amount of $17,603.88, and she had paid $6000.

ROC investigator Michael Wiskow conducted a jobsite inspection on January 5, 2021.

On January 5, 2021, ROC issued to Respondent a Directive that provides in part:

.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 2, 2021.

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

Compliance Item: 1 - Drop in tub not installed with support from framing.

Investigator’s Observation: The tub is currently installed with tile on the deck as well as the walls. The sides of the tub flex when pushed on indicating the tub is not sitting securely on the framing. The sides of the tub should be fixed and not movable.

Contractor should repair by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Tile not grouted correctly

Investigator’s Observation: As a result of the movement of the tub, the grout at the back side of the tub is cracking. After the tub is secured (Complaint item #1), the grout should be repaired.

Contractor should make repairs by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Grab bar not installed.

Investigator’s Observation: There is a grab bar on site that is still in the box uninstalled. The grab bar should be installed per the homeowner’s placement request.

Contractor should repair by appropriate means.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 5 - Sheetrock not replaced

Investigator’s Observation: The sheetrock on the dining room side of the bath has not been replaced. It was taken out by the contractor. The dining room wall should be returned to the condition it was before the demo.

Contractor should make repairs by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Ceiling insulation fell out during demo and wasn't replaced.

Investigator’s Observation: There was no access provided to the attic at the time of inspection. There was a cold draft in the tub area on the dining room side as well as attic debris. Contractor should check to make sure insulation above demo area is adequate.

Contractor should make repairs by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - No insulation around the tub.

Investigator’s Observation: There is nothing that indicates there should be insulation around the tub.

Governing Rule: N/A

Respondent completed some work at the site and on February 4, 2021, Mr. Wiskow conducted a compliance jobsite inspection. Mr. Wiskow concluded the work ROC ordered Respondent to undertake had not been appropriately completed.

ROC issued to Respondent a Citation dated February 12, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Mr. Wiskow testified to the effect that he had determined that the tub was not installed with the proper support based on a photograph provided by Ms. Olson and because the sides flexed when pushed. He testified that during the compliance jobsite inspection, the sides still flexed.

Ms. Martorelli testified to the effect that the tub flexes because it is acrylic and that she had told Ms. Olson to buy a “standard” tub from Lowes or Home Depot, but Ms. Olson did not.

Mr. Olson appears to have equated “standard” with the size of the tub, and she testified that she purchased a deeper, soaker tub.

Respondent’s witness David Reynolds testified that he was involved in work performed to comply with ROC’s Directive.

With respect to Compliance Item 1, Mr. Reynolds testified that this work included adding vertical support to the back of the tub. Although Mr. Reynolds’s opinion was that it was not necessary to do so, he also instructed the tile installer to add thin-set around the base of the tub, which he considered to be overkill because the tub was set in concrete.

Mr. Reynolds was of the opinion that an acrylic aftermarket tub like the one Ms. Olson purchased will always have some flex when installed. He was also of the opinion that this flexing is what caused the grout to fail. The solution to the grout issue is to use caulking and not cement grout.

Regarding the uncompleted or unrepaired drywall, Ms. Martorelli testified that Ms. Olson had informed Respondent that her grandson was going to make those repairs. Ms. Olson disputed that she had said so.

Respondent’s answer shows Ms. Martorelli’s position that the scope of work did not include installation of a grab bar, but she testified to the effect that Ms. Olson’s comments led her to believe that the grandson was going to install the grab bar.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; 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. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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).

The scope of the hearing is limited to issues properly noticed. See Ariz. Rev. Stat. § 41-1092.07(F)(6).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

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

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3. Violation of any rule adopted by the registrar.

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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Regarding Compliance Item 1, it has not been shown by a preponderance of the evidence that Respondent committed a workmanship violation. Although Mr. Wiskow’s opinion is that there was a violation, there is no evidence in the record showing how much the tub might be flexing and there are no objective standards on which to conclude how much flexing (if any) is allowable. Although Mr. Wiskow had Ms. Olson’s photograph showing that there was no vertical support, there is insufficient foundation to conclude that that photograph represented the condition when Respondent completed its installation work.

Regarding Compliance Item 2, the grout, the preponderance of the evidence shows that Respondent committed a workmanship violation that was not properly repaired.

Regarding Compliance Item 4, ROC’s Directive shows that Respondent abandoned the project or refused to perform without legal excuse. The parties did not have written contract and it has not been shown that Respondent was obligated to install the grab bar.

Regarding Compliance Item 5, the preponderance of the evidence shows that Respondent did not return the wall at issue to its preconstruction condition because Respondent did not replace the sheetrock. Ms. Martorelli testified that Ms. Olson told Respondent that her grandson would do that work, which is an affirmative defense. Ms. Olson disagreed and Respondent did not provide sufficient evidence to prove its affirmative defense. The preponderance of the evidence shows that Respondent’s failure to replace the sheetrock was a violation of the workmanship standards.

Regarding Compliance Item 6, there was no substantial evidence adduced to show that Respondent was responsible for insulation falling from the attic and it has not been proven that Respondent committed a workmanship violation.

As set out above, the preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

Respondent’s license should be suspended for one day for the violation of section 32-1154(A)(3) and Respondent should be assessed a $250 civil penalty for the violation of section 32-1154(A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED that Apart Builders and Restoration LLC’s license number 259394 be suspended for one day;

IT IS FURTHER RECOMMENDED that Apart Builders and Restoration LLC be assessed a $250 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 is forty days after the date of that certification.

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-137160-45720000Done this day, April 14, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000