ALJDEC decisions subject to certification as final

2021A-00898-CHC-ROC · Registrar of Contractors · 2021-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lisa D Lessard,

COMPLAINANT

Marco Masini

DBA: Masini and Sons,

License No. ROC 036160,

RESPONDENT

No. 2021A-00898-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 19, 2021

APPEARANCES: Complainant Lisa D. Lessard appeared on her own behalf. Michael Masini, Manager, appeared on behalf of Marco Masini, doing business as Masini and Sons.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Marco Masini, doing business as Masini and Sons (Respondent) is the holder of License No. 036160 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 1, 2020, Lisa D. Lessard (Complainant) entered into a contract with Respondent for, among other things, the renovation of a bathroom.

On or about March 2, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Mike Wiskow.

On or about March 31, 2021, after a jobsite inspection, Investigator Wiskow 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 April 28, 2021.

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 reasons1, 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:

Compliance Item: 1 - Tile at top of back wall leans back.

Investigator’s Observation: The top 12-14 inches of the shower wall back is out of plumb by over 1/2 inch. Contractor should straighten wall and repair any resulting tile damage.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 2 - Drain in shower is uneven.

Investigator’s Observation: The linear drain is out of parallel of the back wall by 1/2 inch in 3 feet. The drain should be parallel to the back wall.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 3 – Tile around drain is uneven and grouted poorly. Missing grout along floor and wall between bench and toilet. Gap at bottom of bench and floor. Large gap at back wall. Uneven grouting at the bottom of window.

Investigator’s Observation: The grout lines in the shower as a whole are inconsistent in width. Grout lines should be straight and even in width throughout the shower and surrounding tiled areas. Respondent should inspect ALL grout lines in this project for even and straight width.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 4 - Ledges in shower do not pitch forward to allow water to run off.

Investigator’s Observation: The ledges in the shower are either flat or have a back pitch. The niches and ledges should have a positive drain to the front.

Contractor should repair by appropriate means. . . .

Compliance Item: 5 - Ledge in back pitches backwards toward the wall.

Investigator’s Observation: The ledges in the shower are either flat or have a back pitch. The niches and ledges should have a positive drain to the front.

Contractor should repair by appropriate means. . . .

Compliance Item: 6 - Excessive slope to drain in shower.

Investigator’s Observation: The current slope of the shower is 6.45% (4 inch fall in 62 inch run). The pitch of the shower should not exceed 4.17% (2- 9/16 inch fall in 62 inch run) or (1/2 inch fall in 12 inch run).

Contractor should make repairs by appropriate means. . . .

Compliance Item: 7 - Tiles not flush inside pony wall and between window and corner wall. Tiles surrounding pencil accent on back wall not even.

Investigator’s Observation: There were two spots tested in these areas that had lippage in excess of 1/32 ". Contractor should inspect entire tile job and make sure there is no excess lippage.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 9 - Chipped tiles top of pony wall. Chipped tiles along niche. Chipped tiles along edges in corner between bench and wall.

Investigator’s Observation: Upon inspection it was noticed that several cut tiles had chips in them. Tiles should not have chips in them. Contractor should inspect entire tile job and identify any chipped tiles and replace.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 10 - Large gap between granite and top of pony wall.

Investigator’s Observation: There is a large gap between the granite at the top of the pony wall and the adjacent tile.

Contractor should repair by appropriate means. . . .

Compliance Item: 11 - Uneven grout lines at the base of the vanity.

Investigator’s Observation: There is a grout line that lines up perfectly with the base of the cabinet on one end and is slightly wider at the other end. Grout lines should be uniform in appearance.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 13 - Wall where door was removed is uneven where stud is and poorly plastered.

Investigator’s Observation: The repaired wall should be straight and have a uniform finish.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 14 - Linen cabinet door is warped

Investigator’s Observation: The cabinet door is warped and should be replaced.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 15 - Granite top at vanity installed incorrectly. Gap from middle cabinet top due to incorrect installation. Frame around mirror not finished.

Investigator’s Observation: The vanity is not finished. The contractor should make repairs and finish the vanity per the photo supplied at the JSI.

Contractor should make repairs by appropriate means. . . .

Compliance Item: 17 - Shower fixtures not installed, Toilet not hooked up, Blow dryer drawer, electrical outlets light fixtures and mirrors not finished.

Investigator’s Observation: Shower fixtures not installed, Toilet not hooked up, Blow dryer drawer, electrical outlets light fixtures and mirrors not finished.

Contractor should finish project per agreement. . . .

On or about April 1, 2021, Investigator Wiskow issued Warning Letters to Respondent for possible violations of A.R.S. § 32-1158(A) and A.R.S. § 32-1154(A)(16)

Following the issuance of the written directive, Respondent started performing some corrective work, but did not complete the work. After the deadline in the directive expired, Investigator Wiskow was notified that the corrective work had not been completed.

On or about April 30, 2021, Investigator Wiskow conducted a Compliance Jobsite Inspection. At the inspection, Investigator Wiskow noted the condition of the project as follows:

Compliance Item #1 Incomplete- Tile at top of wall was removed, but not re-installed.

Compliance Item #2 Incomplete- Drain in shower was removed but not re-installed.

Compliance Item #3 Incomplete- Grout lines not even/complete. Tile work is not finished.

Compliance Item #4 Incomplete- Ledges in shower have not been repaired to pitch forward.

Compliance Item #5 Incomplete- Ledge at back of shower was removed, but not re-installed.

Compliance Item #6 Incomplete- Shower floor was re-installed, but floor is incomplete.

Compliance Item #7 Incomplete- Not possible to test for lippage as tile is not finished.

Compliance Item #9 Incomplete- There are still chipped tiles installed at pony wall.

Compliance Item #10 Incomplete- Granite cap not present. Removed, but not reinstalled.

Compliance Item #11 Incomplete- Grout lines at cabinet base is still uneven.

Compliance Item #13 Incomplete- The wall has not been repaired.

Compliance Item #15 Incomplete- The vanity is incomplete.

Compliance Item #17 Incomplete- Shower fixtures are not installed.

On or about May 10, 2021, 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; and A.R.S. § 32-1154(A)(22).

Investigator Steve Nelson appeared at the hearing because Investigator Wiskow was no longer employed by the Registrar. Investigator Nelson testified that regarding the observations and photographs of the jobsite recorded by Investigator Wiskow. Investigator Nelson noted that, based on the photographs, the project was not close to being completed.

Complainant testified that Respondent had the ability to return to the jobsite to perform the corrective work at any time. Complainant stated that she received a text from Michael Masini on April 12, 2021, saying that Respondent would be on the jobsite on April 13, 2021 to start performing the corrective work. Complainant was concerned with the short notice and responded that she needed to check with Investigator Wiskow as to her obligation to let Respondent in with little warning. Later in the day, Complainant told Michael Masini that Respondent could start working the following day, but he responded that they would start on April 19, 2021. Complainant asserted that during the time period after the directive was issued and before the deadline, Respondent never worked a complete day on the job. Complainant acknowledged that on the last day before the deadline expired, she tried to sit in the bathroom, out of Respondent’s way, to observe Respondent’s work because she was concerned the workers would cut corners to get the job done in time. According to Complainant, Michael Masini got upset with her for being in the bathroom, so she went into the bedroom to watch, but then he kept shutting the bathroom door to keep her from watching.

Michael Masini testified that his father, Marco Masini, was “basically retired” and, as a result, he runs the company. Mr. Masini stated that Marco Masini, the owner and Qualifying Party, was 89 years old and could not be expected to run the business. When asked, Mr. Masini initially denied that he was an employee, member, or manager, but eventually represented that he could be considered a manager. Mr. Masini testified that later on the day of the jobsite inspection, he had a heart attack and was hospitalized until April 10, 2021. Mr. Masini stated that, on April 12, 2021, he texted Complainant stating he would begin work on April 13, 2021, but, because Complainant did not immediately acquiesce, he had to move it back to April 19, 2021. Mr. Masini asserted that he simply did not have enough time to complete the corrective work, and he tried to complete what he could in the time he was given. Mr. Masini indicated that no one else was available to perform any of the corrective work while he was in the hospital. Mr. Masini maintained that he informed Complainant of his heart attack and hospitalization, but Complainant did not believe him.

Administrative notice is taken of Respondent’s prior License record on November 7, 2021. Such prior License record reflects that Respondent’s License No. 036160 was first issued on July 31, 1972, and has been suspended for non-renewal since July 1, 2021. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license. Marco Masini is identified as the Owner and Qualifying Party on the license. Michael Masini is not listed on the 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 work was not in conformity with the Registrar’s standards. 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).

While Michael Masini’s heart attack and hospitalization were unfortunate and, undoubtedly, affected Respondent’s ability to comply with the written directive, Mr. Masini himself delayed work on the project by almost a week because he did not communicate his proposed start date with Complainant until the day prior to starting. Of particular note, is Marco Masini’s apparent lack of supervision and involvement in the day-to-day operation of Respondent despite being the Owner and Qualifying Party.

The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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. 036160 for a period of fourteen (14) 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, November 8, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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