ALJDEC decisions subject to certification as final

2020A-06042-CHC-ROC · Registrar of Contractors · 2021-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jamie Maria Sanchez,

COMPLAINANT

Arizona Restoration Experts LLC,

License No. ROC 267098,

RESPONDENT

No. 2020A-06042-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 7, 2021

APPEARANCES: Complainant Jamie Maria Sanchez appeared on her own behalf via Google Meet. Bill Terrezas appeared via Google Meet on behalf of Respondent Arizona Restoration Experts, LLC. Investigator John Smith appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Arizona Restoration Experts LLC (Respondent) is the holder of License No. 267098 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 27, 2020 Jamie Maria Sanchez (Complainant) signed a contract with Respondent for remodeling and addition to a manufactured home. The contract amount was for $25,000.00.

On or about January 4, 2020, the Registrar received a Complaint containing twenty-four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on January 20, 2021.

Investigator Smith then issued a written directive on or about January 25, 2021 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 February 24, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

All work is required to be completed per contract:

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Governing Rule: A.R.S. § 32-1154 (A) 2 (b): Departure from or disregard of: (b) A building code...

Governing Rule: A.R.S. § 32-1154 (A) 3 (b) : Violation of any rule adopted by the registrar, Namely R4-9-108: (B) A contractor shall perform work in accordance with any applicable building codes and professional industry standards.

Complaint Item 1: “Master bath has patchwork baseboard job by right corner of mirror”

Investigator’s Observation: Verified:

The base trim surfaces are not flush across the mitered corner to the right of the closet door in the master bathroom.

As an example, the surfaces are flush across the mitered corner on the left side of the same door opening.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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: “window in Master Bath only has half the track. and is crooked.”

This was described by the complainant to include the master bathroom window not staying open, and gaps between the drywall and the windows throughout most of the house.

Investigator’s Observation: Verified:

The window in the master bathroom will not stay open. The sash is loose in the frame. The track is missing from the right side of the frame.

There are excessive gaps between the drywall and the window frames at most windows throughout the house.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 3: “front door does not shut correctly”

This was described by the complainant to include the main entry door not closing properly, and unpainted putty on trim throughout the interior of the house.

Investigator’s Observation: Verified:

When opening and/or closing the door, the door gets hung op on the threshold.

The deadbolt is not properly aligned with the strike plate.

There is unpainted wood filler/putty on interior trim throughout the interior of the house.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 4: “proper permits required by the county were not pulled by the contractor according to our agreement”

Investigator’s Observation: Verified:

Several aspects of this project require a permit to be obtained prior to work beginning:

• Relocating walls

• Replacing and relocating windows

• Modifying duct work

• Modifying plumbing

• Modifying electrical wiring

All work was performed without a permit being obtained.

Governing Rule: A.R.S. § 32-1154 (A) 2 (b): Departure from or disregard of: (b) A building code...

Complaint Item 5: “contractor did not inform me that house should be leveled before laying an entire house with tile and adding marble.”

Investigator’s Observation: Verified: Tiled floors in the house are not level.

In areas checked, the floors are out of level 1/2 to 5/8 inch in a four foot span.

Unevenness of wood or metal framed floors should not exceed 3/16 inch in a four foot span.

Wood or metal framed floors should be level within 1/2 inch in a 12 foot span, which is equal to approximately 5/16 inch in a four foot span.

By installing the floor tile, the respondent accepted the condition of the underlying surfaces.

Quoted from Substantive Policy Statement 2017.01

Acceptance of the Surface

• "As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner's or general contractor's attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer."

Source: Deebv. Check s Epoxy , No. 2014A-3258 (ALJ Decision at 11:11- 19).

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 6: “There is a crack in the ceiling in the center of the home.”

Investigator’s Observation: Verified: There is visible cracking in the ceiling of the living room / kitchen area. The project was completed approximately eight months prior to the complaint being filed with the Registrar of Contractors.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 8: “grout is coming up, cracking and breaking in parts where it was not properly mixed or applied. There is no grout at the base of the front entry”

Investigator’s Observation: Verified:

The following grout issues were observed during the inspection:

• Grout is chipping out between the tile and the threshold of the main entry door.

• Voids, chips, and cracks in the grout throughout the house.

• Uneven grout width due to overcut tile in master bathroom.

• Areas of lippage exceeding the allowable 1/32 inch tolerance.

• Cracked tiles.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 9: “Finish on drywall is not satisfactory especially in the guest and master baths. drywall mud was not smoothed and sanded”

Investigator’s Observation: Verified:

The following drywall issues were observed during the inspection.

• Numerous dents in diagonal cornerbeads.

• Bulges in tape at drywall joints.

• Several drywall cracks.

• Poor, uneven, inconstant finish.

• Drywall compound and paint coming loose from the ceiling.

• Gouges and voids that have been painted over.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 10: “paint drips on the tile throughout the house”

Investigator’s Observation: Verified: There are random locations of paint drips on the tile floor throughout the house.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 11: “malfunctioning plug in the guest bath”

Investigator’s Observation: Verified: This intermittent problem was not able to be duplicated during this inspection, however; the wiring to this outlet was done without a permit being obtained.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 12: “runner of center island cabinets not properly attached”

Investigator’s Observation: Verified: The toe kick board is loose from the island cabinets in the kitchen.

Governing Rule: A.R.S. § 32-1154 (A) 3 (a): 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 20: “moisture barrier was not repaired/replaced where duct was repaired”

Investigator’s Observation: Verified: There are visible areas of the moisture barrier and insulation below the house that are loose and falling.

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

Also on January 25, 2021, Warning Letters were sent by Investigator Smith informing Respondent there may be violations for contracting without a license and contracting beyond the scope of Respondent’s license.

On March 2, 2021, 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(a) and (b); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; A.R.S. § 32-1154(A)(13); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about March 15, 2021, Respondent e-mailed an Answer to the Registrar.

On or about April 2, 2021, a Notice of Hearing was issued setting a hearing on May 7, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Smith testified as to the Registrar’s involvement and the above timeline.

Investigator Smith testified Respondent failed to appear at the Jobsite Inspection. Further, Investigator Smith testified that on or about February 9, 2021, he received a voicemail from Mr. Terrazas. Mr. Terrezas informed him that he did not open his mail until after the Jobsite Investigation. Investigator Smith then testified that he did not hear from Mr. Terrazas again until February 18, 2021, informing him that he could not find the Written Directive.

In addition, Investigator Smith testified that he contacted Ms. Sanchez on February 24, 2021, to inquire as to if any of the corrective work had been performed. When she informed him that it had not, he referred the case to the legal department.

Investigator Smith testified that there was no written contract, that Respondent was using unlicensed contractors, and that Respondent was contracting beyond the scope of his license as he had a General Residential B General Residential Contractor license and therefore needed to hire sub-contractors for plumbing mechanical and electrical work.

Investigator Smith further testified that on April 7, 2021, Mr. Terrazas contacted him stating that a permit was not needed per the Pima County Development Services (“PCDS”). Investigator Smith then contacted PCDS and was informed that a permit was required because although the home was a manufactured home, the project included adding livable space which required a permit. Investigator Smith testified that he immediately e-mailed this information to Mr. Terrazas.

Investigator Smith also testified that he was informed by PCDS that the permit application did not disclose all work to be performed, which is why PCDS may had informed Mr. Terrazas that a permit was not required.

Investigator Smith testified that Mr. Terrazas did not apply for the permit until after the due date on the Written Directive, and then voluntarily withdrew the application for the permit.

Finally, Investigator Smith testified that he informed Ms. Sanchez that she did not have to allow Mr. Terrezas on the property to make repairs until the Directive was issued. This was because Investigator Smith scheduled the Jobsite Inspection within the 15 day requirement for contractors to inspect the work. Thus, Investigator Smith believed that Ms. Sanchez was within her rights to refuse to allow Mr. Terrezas on the property prior to the jobsite inspection.

Complainant testified on her own behalf testified that she hired Respondent to perform a complete re-model of her manufactured home. She testified that Mr. Terrazas only came to the jobsite three times, and that she could very rarely get a hold of him, and when she did, he would always request additional funds for the project.

Complainant testified that she had panicked when she noticed the crack in the ceiling and when she did not hear back from Respondent, she filed the complaint with the Registrar.

Complainant testified that Mr. Terrezas sent text messages on January 7, 2021 and January 11, 2021 requesting to make the repairs, but she opted to wait until the Registrar conducted the jobsite inspection due to prior behaviors of Mr. Terrazas.

Complainant testified further that there were no attempts made to correct the Directive items from January 25, 2021 through February 24, 2021.

Finally, Complainant testified that the Directive items were not just patchwork, they were serious and needed correcting.

Bill Terrazas testified on behalf of Respondent. He testified that he had text messages from her stating how happy Complainant was with the work. He further testified that since December, he had tried to make it right, but Complainant refused to allow him on the property.

Mr. Terrazas testified that as to the permits, he had his draftsman submit the same, and was informed by PCDS that a permit was not required for the job, and thus he withdrew the permit request. Mr. Terrezas testified that he did not believe a permit was required, because he was just enclosing and existing area and no square footage was being added.

Further, Mr. Terrazas testified that because the Registrar determined a permit was needed and he did not obtain the same, he could not perform the work required by the Directive.

Mr. Terrazas testified that there was no written contract, that plumbing was not within the scope of his license and that his manager, Adan Vasquez, worked under his license.

Administrative notice is taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflects that Respondent’s License No. 267098 was first issued on August 25, 2021, and reflects that there was one open complaint, namely the present complaint.

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 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 preponderance of credible evidence established that a permit was required for the work and Respondent failed to obtain the same at the outset. Further, the credible evidence established that even when Respondent applied for the permit, it was well after the Written Directive had expired. In addition, the confusion over whether PCDS required a permit was due to an inaccurate application submitted by Respondent. Further, when Investigator Smith e-mailed Mr. Terrezas about the necessity of the permit, Mr. Terrezas failed to correct the same. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3) - R4-9-108(B).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The master bath had base trim surfaces which were not flush, the window in the master bathroom would not stay open, the front door did not close properly, the tiled floors were not level, there was visible cracking in the ceiling, there were issues with the grout and drywall, there were paint drips on the floor, the cabinets were not attached properly, and there were visible areas of the moisture barrier and insulation which were loose and falling. Further, Mr. Terrazas did not dispute the same. 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(A).

The preponderance of the evidence established, and Mr. Terrezas admitted, that Respondent’s manager, Adan Vasquez, was working without a license is violation of A.R.S. § 32-1154(A)(9)(a).

The preponderance of the evidence established, and Mr. Terrazas admitted, that there was no written contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The preponderance of the evidence established that the work which Respondent performed was outside of the scope of its license and that Respondent’s workers did not have the proper licenses to perform such work in violation of A.R.S. § 32-1154(A)(13) and A.R.S. § 32-1154(A)(16).

The evidence established and Mr. Terrazas admitted that he failed to complete the corrective work following the Directive being issued. Mr. Terrazas’ testimony that he did not receive the notice of jobsite inspection was unpersuasive. In addition Mr. Terrazas’ submittal of the application for the permit after the Directive expired was unacceptable. He further compounded the situation by failing to review the permit application to ensure it accurately described the project prior to its submittal. Mr. Terrezas’ testimony that Complainant denied access is likewise unpersuasive. Complaint was not required to allow access prior the jobsite inspection, and there was no evidence presented that she denied access once the Directive was issued. Admittedly, it is curious why Complainant would not grant access when Respondent requested the same. However, Complainant persuasively testified that based upon previous interactions, she believed her actions were justified and there was no rule or statute requiring her to allow access prior to the jobsite inspection, as it was timely scheduled. 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).

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. 267098 for a period of ten days.

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)(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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Done this day, May 17, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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