ALJDEC decisions subject to certification as final

2021A-00993-CHC-ROC · Registrar of Contractors · 2021-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Wynn,

COMPLAINANT

SOS Builders LLC,

DBA: Venturi Restoration,

License No. ROC 280784,

RESPONDENT

No. 2021A-00993-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 15, 2021

APPEARANCES: Complainant Michael Wynn appeared on his own behalf. Respondent SOS Builders LLC, was represented by Paul M. Levine, Esq. appearing via Google Meet. Investigator Jack Grimm appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

SOS Builders LLC (Respondent) is the holder of License No. 280784 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 27, 2018 Michael Wynn (Complainant) signed a contract with Respondent for restoration of his kitchen due to an insurance claim. The contract amount was for $17,457.70.

On or about March 9, 2021, the Registrar received a Complaint containing twelve items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on March 25, 2021.

Investigator Grimm then issued a written directive on or about March 30, 2021, 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 April 30, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Intercom panel lost during your company repair of the kitchen, estimates sent to Cory for replacement.

Investigators Observation: Contractor removed panel during remediation and the intercom face is now missing. Contractor is responsible for care of parts to be removed and reset during the reconstruction process.

*Install incomplete intercom panel.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #2: Granite placed by unlicensed subcontractor, not completed and treated etc.

Investigators Observation: Homeowner asked me to look at the counter top seam in the corner between the oven and the stove. This seem is acceptable. The end of countertop backsplashes (2) has not been installed and need to be completed. I was not presented with any evidence of unlicensed installation or identity of said person.

*Complete installation of (2) end of counter backsplash.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #3: Flooring damage scrapes on kitchen floor by cabinet installer crew.

Investigators Observation: Very hard to determine who or what damaged the flooring. Floor was not clean and it was difficult to see damage or defects in the flooring installation. Observed one scratch in front of the refrigerator most likely caused by refrigerator installation.

*Correct scratch floor in front of refrigerator.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #4: Flooring damaged by dishwasher installer. Several panels buckled.

Investigators Observation: I was only able to observe one location that possibly was damaged by any water leak caused during the dishwasher installation. Observed two small puckers of laminate flooring in a seam at the east end of the island sink base. No buckled location was observed. There was some movement in the flooring and this is not uncommon for this kind of flooring installed over foam pad.

*Correct damaged area.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #5: Reverse osmosis broken/missing connections.

Investigators Observation: Parties state the reverse osmosis installed und the kitchen sink is not functioning and needs to be complete. No water was present at faucet.

*Complete installation of reverse osmosis system.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #6: Oven cabinet needs to be removed and installed properly to the wall to prevent tilting forward as it is at present condition, caused anxiety as it’s dangerously not affixed to the wall.

Investigators Observation: Oven cabinet has separated from the wall to the left of it for some reason. Cabinet is level and plumb. The crown molding and scribe up the front has separated from the wall.

*Determine cause of separation, repair and correct trim. (crown and scribe)

Governing Rule: 32-1154(A)(3) poor work

Complaint Item #9: We will order six smaller cabinet end panels (to replace the larger ones) for the island caps. These new panels will work with the electrical outlets in the island. We will also ask the cabinet supplier to order the smaller drawer for underneath the micro wave to allow for the microwave trim kit to be installed.

Investigators Observation: False overlay panels at the end of the island cabinet are not installed in a manner that allows the electric receptacles to be installed correctly. Parties have agreed to install a different size panels (3 on each end) to complete this portion of the work. Microwave trim kit is unable to be installed due to the issue of the drawer size under it. Parties have agreed to change the drawer size to accommodate the trim kit that needs to be installed.

*Complete panel installation and electric at end of island and correct cabinet at microwave to accommodate the trim kit.

Governing Rule: 32-1154(A)(3) poor or incomplete work.

Complaint Item #10: When those items arrive we will also have our technician add scribe molding to the area beneath the double oven vent space and adjust the scribe and crown molding that has pulled away from the wall on the side of the same full height cabinet. He will also be able to address any touch ups and loose hinges on the cabinets.

Investigators Observation: A gap is present under the oven cabinet that needs to be completed. Gap at the left of the oven cabinet has been addressed in #6 above. Observed several cabinet doors that need adjustment.

*Correct gap under oven cabinet and adjust cabinet doors for functionality.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #11: We will have our flooring technician return to address the gapping in the laminate floor and replace the quarter round trim at the back sliding door, the transition mold that is damaged at the carpet in the entryway and the stair nose at the top of the stairs.

Investigators Observation: Observed locations of gapping in flooring, uninstalled trim at back door and damaged transition strips.

*Correct any locations of gapping larger than allowed by the manufactures installation instructions and complete trim and transition installation.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #12: We will have our painter out to caulk and paint the baseboard throughout where the flooring was replaced (also to add the baseboard piece that was missing in the kitchen). He can also paint the wall where the counter top was leaned against after mitigation took place.

Investigators Observation: Homeowner stated she was caulking and planning on painting the baseboard installed over the new flooring. Observed a missing piece of base under the left side of oven cabinet.

*Complete any missing base and caulk and paint as outlined in insurance scope of work, unless another agreement between parties is in place.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #13: This item was added with the agreement of both parties at the inspection. Painting of walls incomplete per insurance scope of work.

Investigators Observation: Parties state and it was observed that repaint in the kitchen has not taken place.

*Complete painting as outlined in insurance scope of work.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #14: This item was added with the agreement of both parties at the inspection. Refrigerator installation not complete. Water line not attached.

Investigators Observation: The refrigerator was not pulled out to observe that the water line was not attached. Parties agreed the water line is not attached. Water and ice function did not work.

*Attached water line to refrigerator.

Governing Rule: 32-1154(A)(3) Poor or incomplete work.

(All errors contained in the original)

A compliance jobsite inspection was performed on May 7, 2021. In the Notes from the inspection, Investigator Grimm noted that items 1, 2, 3, 4, 9, 10, 11, 12, and 13 remained incomplete.

On May 12, 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(a) and A.R.S. § 32-1154(A)(22).

On or about May 14, 2021, Respondent filed an Answer with the Registrar, denying any violation and informing the Registrar that it had “diligently and in good faith...made every effort to comply with the Directive...”

On May 21, 2021, Respondent filed a supplemental Answer informing the Registrar that it had completed more of the Directive items and expected to complete all of the remaining items by May 28, 2021.

On or about June 8, 2021, a Notice of Hearing was issued setting a hearing on July 15, 2021 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Grimm testified that he believed the time given in the Written Directive was sufficient to complete the repairs. He further testified that he did not complete a pre-hearing inspection.

Further, Investigator Grimm testified that he heard from Complainant that Respondent had not commenced making the repairs until April 27 or 28, 2021 and therefore scheduled the compliance jobsite inspection on May 7, 2021.

Investigator Grimm testified that while he received correspondence from Respondent’s attorney on May 12, 2021 explaining the delay, he did not contact either party to try to extend the deadline for completion.

Complainant testified on his own behalf and did not offer any exhibits into evidence.

Complainant testified that he did not hear from Respondent until April 27, 28 or 29 regarding the progress of the repairs. He also testified that some days he was not present when Respondent was making the repairs.

Further, Complainant testified that he performed some of the painting, but that most items, but for the intercom and the cabinet adjustment, had been repaired.

Finally, Complainant testified that he had been real patient and just wanted the repairs to be over.

Respondent presented the testimony of Adam Lauder, Raul Flores and Justin Sellers and offered eight exhibits into evidence.

Mr. Lauder testified that he was the estimator on the project.

As to complaint item 1, the intercom speaker, Mr. Lauder testified that the panel needed to be replaced and that Mrs. Wynn had found a panel that was supposedly compatible with the existing equipment. Mr. Lauder testified that Mrs. Wynn gave him the information on April 29, 2021 and he ordered the part on May 3, 2021. On May 6, 2021, Mr. Lauder was informed that the person he e-mailed was no longer with the company, and re-ordered the panel that day. Mr. Lauder then testified that he tried to find a company to install the panel, but it was difficult to obtain such a company due to various issues.

As to complaint item 2, Mr. Lauder testified that there were some delays in obtaining the correct piece of granite, but that it had been installed as of May 25, 2021.

As to complaint items 3, 4 and 11, Mr. Lauder testified that he immediately ordered the flooring on April 1, 2021 but due to delays in obtaining the same and wanting to install the same towards the end of the project, the flooring was not installed until June 4, 2021.

As to complaint item 9, Mr. Lauder testified the cabinets were ordered on April 7, 2021 and received on May 7, 2021. He further testified that all cabinets were repaired but for the panel underneath the microwave, however, it was onsite and just needed to be adjusted.

As to complaint item 10, Mr. Lauder testified the gaps in the cabinets were repaired on May 19, 2021.

As to complaint item 12, Mr. Lauder testified the caulking was completed on June 9, 2021.

As to complaint item 10, Mr. Lauder testified the painting was completed on May 17, 2021.

Finally, Mr. Lauder testified that he contacted Complainant with updates on the progress of completing the Directive. Mr. Lauder also testified that Ms. Wynn informed him that she wanted the work done as quickly as possible but to minimize visits to the house as much as possible.

Mr. Flores testified that he was the project manager put in charge of completing the Directive.

Mr. Flores testified that he did not contact Complainant until after April 30, 2021, but rather Justin Sellers communicated with Complainant.

In addition, Mr. Flores testified that he had the intercom part in his possession, and was ready to be installed.

Mr. Flores also testified that at times, Complainant would not be available for Respondent to make the repairs. One example of this was when he contacted Mrs. Wynn to request a “walkthrough” with the flooring contractor. Mr. Flores testified that he requested the same to avoid any mistakes and to make sure they had enough panels. Mr. Flores testified that Mrs. Wynn denied this request, and when the flooring contractors came on May 17, they realized they did not have enough wood panels to complete the job. Thus, additional panels needed to be ordered and those were eventually installed on June 2, 2021.

Finally, Mr. Flores testified that he reached out to Complainant on July 1, 2021 to schedule the installation of the intercom and the cabinet panel but Complainant was not able to schedule the same.

Mr. Sellers testified that he was Respondent’s General Manager He testified that prior to the Directive being issued, he personally went to Complainant’s house to get a better idea of the project and what needed to be completed.

Mr. Sellers testified that once the Directive was issued, he e-mailed Mrs. Wynn starting in mid-to-late April to inform her as to the status of the repairs. He testified that while he invited Ms. Wynn to contact him personally with issues, he did not receive much of a response and when he did, he inferred that Mrs. Wynn seemed irritated.

Finally, Mr. Sellers testified that while the initial contract price as for over $17,000.00, it had ballooned to approximately $37,000.00. Mr. Sellers testified that Respondent has not received any payment on the job despite Complainant’s insurance company remitting payment to Complainant.

Administrative notice is taken of Respondent’s prior License record on July 27, 2021. Such prior License record reflects that Respondent’s License No. 280784 was first issued on October 3, 2012, 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 the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The intercom panel was broken while the backsplash was being repaired, the “side backsplash” was not properly installed, the flooring was scratched, the cabinets were not installed correctly, and caulking and painting were not completed. 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 evidence established that despite Respondent’s best efforts, the repairs were not made within the time period of the Directive. The Tribunal believes that Respondent acted diligently to order the flooring and cabinetry. Also, Respondent acted diligently as to ordering the intercom part once Mrs. Wynn provided the supplier’s information. However, the main issue here appears to be communication during the Directive period. Complainant states that he was not contacted by Respondent until the very end of the Directive period yet, Mr. Sellers testified that he was in contact in mid-April. Although Respondent made reference to e-mails which proved Mr. Seller’s contact regarding updates as to the progress, those were not offered into evidence. Respondent e-mailed Mr. Grimm five days after the compliance inspection but it is curious as to why the Registrar did not take a more active approach in helping the parties with extensions and the like.

However, based upon the testimony from Respondent’s witnesses, the repairs which were completed, were done so after the Directive period. Therefore, Complainant established that Respondent failed to timely take appropriate corrective action without valid justification, 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. 280784 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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, July 27, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000