ALJDEC decisions subject to certification as final

2021A-01238-CHC-ROC · Registrar of Contractors · 2021-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Linda Lee DeFurio,

COMPLAINANT

New Image LLC

License No. ROC 317418,

RESPONDENT

No. 2021A-01238-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 12, 2021

APPEARANCES: Complainant Linda Lee DeFurio represented herself. Lonnie Clay appeared on behalf of New Image LLC. James Simpson, Investigator for the Registrar of Contractors, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

New Image LLC (Respondent) is the holder of License No. 317418 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 23, 2021, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to work in the master bathroom.

The Registrar assigned the complaint to Investigator James Simpson. The jobsite inspection was performed on April 20, 2021.

Next, Investigator Simpson, issued a written directive on or about April 27, 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 May 27, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: “AFter using ShoweR a week Brown Rusty stuFF was leaking on Floor & discoloring tile.”

This was described by the complainant to include:

• Standing water on the shower floor

• Rust stains on the shower floor

• Calcium build up on the shower drain cap

• Significant cracking in the grout on the bench/seat.

Investigator’s Observation: This allegation is verified.

All conditions described by the complainant are present.

No water was run in the shower during the inspection.

There are rust stains on the shower floor between the back wall of the shower and the shower drain.

There is also standing water in the same area.

As a result of the standing water on and around the shower drain cap, there is also a significant amount of calcium build-up on the shower drain cap.

There is also significant cracking of the grout around the upper tiles of the built in shower bench/seat.

This significant cracking appears to be from swelling of materials behind the tiles.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(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 May 27, 2021, a Warning Letter was sent by Investigator Simpson informing Respondent he may be in violation failing to meet the minimum elements of a contract.

On May 28, 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about June 7, 2021, Mr. Clay e-mailed an Answer to the Registrar, claiming that there was no contract between Respondent and Complainant. He stated that the work was done for the previous homeowner who had no complaints about the work.

On or about June 28, 2021, a Notice of Hearing was issued setting a hearing for August 12, 2021 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Simpson testified as to the Registrar’s involvement and the above timeline.

Investigator Simpson testified that as to the possible contract violations, Respondent did not have the estimated completion date, nor did the contract contain language that informs the consumer of the right to file a complaint with the Registrar.

As to the workmanship issues, Investigator Simpson testified that he saw the brown substance in Complainant’s shower. Further, Investigator Simpson testified that there was no slope to the drain and there was zero tolerance allowed for this.

In addition, Investigator Simpson testified that there was no work performed during the directive period, and at his pre-hearing inspection on August 11, 2021, he noticed further moisture damage in the shower. Investigator Simpson also testified that he believed that the timeline given in the Directive was reasonable to complete the work.

Investigator Simpson also testified that the Registrar had a right to proceed in this matter even though Complainant did not have a contract with Respondent.

Complainant testified on her own behalf and offered five exhibits into evidence.

Complainant testified that on July 22, 2019, she purchased her home from David E. Jones. Mr. Jones was a “flipper” and hired Respondent to complete some work in the kitchen as well as the master bathroom. Complainant testified that Mr. Jones listed Respondent’s contact information in the Disclosure Statement of the purchase contract.

Complainant testified further that shortly after she moved in, she noticed a brown substance in the shower. Complainant testified that she tried to contact Respondent to come and look at the shower but he would not oblige. She then contacted Mr. Jones about the problem.

Complainant also testified that she did not use the shower in any improper manner.

Once the Directive was issued, Complainant testified that there was no action by Respondent to make the repairs.

Complainant testified that this appeared to be a sham and does not believe that she should have to pay almost $4,000.00 to have the repairs completed.

Mr. Clay testified on behalf of Respondent. He testified that in 32 years in business he has never had a complaint with the Registrar.

Mr. Clay re-iterated that he never had a contract with Complainant, but when Mr. Jones informed him that Complainant was unhappy, he went over in August 2019 to look at the shower.

Next, Mr. Clay testified that he saw a brown sticky substance and that he cleaned the shower and used silicone caulking and re-sealed the shower. He testified further that he did not know this was an ongoing issue.

Mr. Clay testified that this issue was frustrating as he installed thousands of showers without this type of incident. He opined that the only way rust could occur was if there was some metal somewhere, and that he did not use metal with this installation.

Next, Mr. Clay testified that when we was at the inspection the brown sticky substance was not as bad, as it previously appeared, but acknowledged it was still present.

In addition, Mr. Clay testified that he did not make any attempts to repair once the Directive was issued because he did not think he was liable and that he was not going to invest any of his time and money in Complainant’s shower.

Finally, Mr. Clay testified that as to his contract, he normally does not put an estimated time for completion as most of his projects are relatively quick, and has never use the “right to file” language in his contracts.

Administrative notice is taken of Respondent’s prior License record on August 24, 2021. Such prior License record reflects that Respondent’s License No. 317418 was first issued on January 16, 2018, 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, and Mr. Clay admitted, that the contract for this project did not contain the estimated date of completion nor the “right to file” language. Thus, Respondent is in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Even after the initial repairs performed by Mr. Clay in August 2019, the brown sticky substance returned. Further, the fact that moisture was still appearing as recently as August 11, 2021, demonstrates an issue with the construction of the shower. 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 and Mr. Clay admitted that he failed to complete the corrective work following the Directive being issued. Much of Respondent’s defense centered around the fact that he did not have a contract with Complainant and thus the Complaint was improper. The Administrative Law Judge disagrees. A.R.S. § 32-1154(B)(2), states that, “[t]he Registrar [s]hall investigate the acts of a contractor in this state on the written complaint of any owner or contractor that is a party to a construction contract or a person who suffers a material loss or injury as a result of a contractor's failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” (Emphasis added). Here, it is clear that Complainant has suffered a material loss from the use of her shower based upon the findings above. Thus, there was no valid justification for Mr. Clay’s failure to perform under the Directive. 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. 317418 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.

-54864001

001

-137160-45720000Done this day, August 24, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000