ALJDEC decisions subject to certification as final

2021A-01218-CHC-ROC · Registrar of Contractors · 2021-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jacquelyn Ayala-Parker,

COMPLAINANT

T K Quality Builders, LLC

DBA: Anthony’s Fine Homes,

License No. ROC 247641,

RESPONDENT

No. 2021A-01218-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 6, 2021

APPEARANCES: Complainant Jacquelyn Ayala-Parker appeared on her own behalf. Anthony Gumma appeared on behalf of Respondent T K Quality Builders, LLC, doing business as Anthony’s Fine Homes. Arizona Registrar of Contractors Investigator Jack Grimm appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

T K Quality Builders, LLC, doing business as Anthony’s Fine Homes (“Respondent”), is the holder of License No. 247641 issued by the Arizona Registrar of Contractors (“Registrar”). Anthony Gumma is the qualifying party for Respondent.

In or about March 2018, Jacquelyn Ayala-Parker (“Complainant”) contracted with Respondent for Respondent to construct an addition to Complainant’s home.

On or about March 23, 2021, Complainant filed a Complaint against Respondent with the Registrar alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Jack Grimm. A jobsite inspection was performed on April 13, 2021. Respondent did not attend the jobsite inspection. Investigator Grimm testified at hearing that this was the second complaint filed against Respondent regarding this project, and that the first complaint regarding this project resulted in the revocation of Respondent’s license. Investigator Grimm explained that he did not issue a Written Directive because Respondent’s license was revoked at the time of the jobsite inspection, and consequently, Respondent could not perform any corrective work. Investigator Grimm’s jobsite inspection notes provide in pertinent part as follows:

No one was present representing TK Quality Builders LLC.

This complaint is related to 2020-01927 filed by Gracia Ayala the mother of this complainant. Jacquelyn Ayala-Parker resides at the residence. The respondents license was revoked as a result of that complaint with a 4-day suspension and a civil penalty that was never paid.

Many of these complaint items are similar as the previous complaint.

The main issue is that the contractor did not complete this portion they call Phase One of a Two Phase construction project to a point of city code enforcement approval that would allow usage of the space.

I will document the current complaint items as they may be repeats of previous complaint items, additional items in conjunction with previous complaint items, issues cause due to corrections or repairs that were performed or newly discovered issues.

Complaint Item#1: Complaint previously filed under 2020-01927. Please assign to Jack Grimm.

Investigators Observation: This was addressed in the jobsite general notes.

Complaint Item#2: Kitchen cabinet door for garbage bin has not been replaced. Handle was moved to top of door which has left holes in the door.

Investigators Observation: Observed holes in the door on side style as the handle was moved to the top for functionality due to this is a pull out bin. Additional item since last visit.

Complaint Item#3: Kick plate under the cabinets is not secure and fails down.

Investigators Observation: Toe kick plate is not secured. Additional item since last visit. Property owners also state that an agreement took place for a valance above the kitchen sink to hind other poorly installed trim.

Complaint Item#4: Crown molding around pantry has still not been replaced. Has holes and gaps.

Investigators Observation: Crown molding around the pantry is still poorly installed. This issue was addressed in complaint item #9 in the previous complaint.

Complaint Item#5: Tony agreed to add a pullout cabinet alongside pantry to eliminate gap between wall and pantry. This has not been done.

Investigators Observation: Property owners state there was an agreement between parties to add this cabinet. I was not presented with any documentation regarding this addition and am unable to verify this additional item.

Complaint Item#6: Front door still has see through glass, was supposed to be frosted or obscure.

Investigators Observation: Property owners state it was agreed that something other than what is in place should have been installed at the front door. I was shown a printout of a door with glass called “Chinchilla”. The glass in the door that is installed appears to be rain glass and is a form of obscure glass. Property owners believe it is still see through. No other documentation accompanied the print out and I am unable to verify that there was an agreement to install something other than what is in place.

Complaint Item#7: Stucco outside above south bedroom sliding door is cracking.

Investigators Observation: A small gap between the frame and the stucco has occurred in the location above the west facing rear sliding doors. It is not uncommon for a gap to occur at this kind of location of two dissimilar materials at a west facing location of excessive heat. Gap/crack only needs to be addressed if larger than 1/16 inch. This did not appear to be that large.

Complaint Item#8: Electrical box is mislabeled and has a broken breaker. Outside electrical outlets do not have a water resistant covers and there is a hole behind the stucco.

Investigators Observation: New electrical breaker panel that has been installed in the garage the property owner states in not labeled correctly. This is typically a requirement of code enforcement for final. I did not observe a broken breaker, only that two 50 amps were bridged together with a wire other than the typical plastic bridge connector. The outside electric outlets do have covers but do not appear to be water tight. Both of these items would be addressed by code enforcement. Work is incomplete. Additional items since last visit.

Complaint Item#9: Garage door frame still has not been fixed.

Investigators Observation: Garage walk through door that was installed between the existing and new garage is poorly finished around its perimeter. Mess at floor never cleaned up.

Complaint Item#10: Pass through door from main house to casita needs to be done per city inspector. City inspector issued a corrective notice on Nov. 4th.

Investigators Observation: This door between the existing and new portion has not been installed as outlined per city approved plans. The city code enforcement will not approve this portion (phase one) of the project with this door not in place.

Complaint Item#11: In January 2021 city inspector came back out to reiterate to Tony the need for the pass through door. Without this we are considered a duplex.

Investigators Observation: Addressed in #10 above.

Complaint Item#12: Final inspection was not completed and partial C/O has not been issued. Pass through door needs to be completed so they can issue a partial C/O.

Investigators Observation: Obtaining approval from the code enforcement governing jurisdiction was included in the previous as Complaint Item #1.

All errors in original.

Investigator Grimm forwarded the Complaint 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) and A.A.C. R4-9-108(b).

Investigator Grimm testified consistently with his jobsite inspection notes and emphasized that there is no city approved change order for the pass through door, and therefore, it must be installed per the approved plans.

Complainant testified regarding the exhibits she submitted for hearing, five of seven of which were admitted into evidence. Complainant concurred with Investigator Grimm’s testimony and jobsite inspection notes.

Mr. Gumma testified that there were two parts to this project, a mother-in-law suite and a second story addition with a grade level basement. Mr. Gumma testified that Complainant requested that the project be completed in two phases. Mr. Gumma explained that all profit and overhead was part of the second phase and there was “nothing included to complete the project.” Mr. Gumma testified that he submitted to the Registrar the architectural plans with highlighted areas for the project that demonstrate that “concessions” were made for moving and eliminating windows, and that the pass through door into the existing portion of the home was replaced with a new exterior entrance. Mr. Gumma contended that the new exterior entrance was in lieu of the pass through door that was shown on the plans. Mr. Gumma testified that these changes were not contained within the plans and that Complainant was charged for some of the changes and not for others. Mr. Gumma asserted that this dispute “boils down to money” and that there is a “large rift” between the parties.

Administrative notice is taken of Respondent’s prior License record on July 15, 2021. Such prior License record reflects that Respondent’s License No. 247641 was first issued on August 6, 2008, and is revoked. Such prior License record also reflects that there is one settled/resolved complaint against Respondent’s license, and that Respondent has been disciplined as a result of two other complaints, one resulting in suspension, and the other resulting in revocation with an effective date of December 29, 2020.

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. Ariz. Admin. Code 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).

Ariz. Rev. Stat. section 32-1154(A) provides the following:

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

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

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

Ariz. Admin. Code R49108(b) provides that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”

The credible and probative evidence of record 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 professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The credible and probative evidence of record further established that Respondent did not perform all work in accordance with any applicable building codes and professional industry standards, specifically the pass through door. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).

. . . .

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, T K Quality Builders, LLC, doing business as Anthony’s Fine Homes’ License No. 247641 shall be suspended for a period of seven (7) days.

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, July 20, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000