ALJDEC decisions subject to certification as final

2021A-01668-CHC-ROC · Registrar of Contractors · 2021-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Julie Kay Barnes,

COMPLAINANT

Redemption Interiors, LLC

License No. ROC 321294,

RESPONDENT

No. 2021A-01668-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 1, 2021

APPEARANCES: Complainant Julie Kay Barnes appeared on her own behalf. Zachary Kreidel appeared on behalf of Respondent Redemption Interiors, LLC. Investigator Daniel Edwards appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Redemption Interiors, LLC (“Respondent”) is the holder of License No. 321294 issued by the Arizona Registrar of Contractors (“Registrar”). Zachary Kreidel is the qualifying party and manager of Respondent.

In December 2020, Julie Kay Barnes (“Complainant”) contracted with Respondent for Respondent to perform remodel and repair work at Complainant’s home.

On or about April 16, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor worth with respect to the project.

The Registrar assigned the Complaint to Investigator Mike Wiskow. 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 June 4, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Structural beam and wood surrounding garage door

not complete.

Investigator’s Observation: The new structural beam is there, however, there is evidence that the exterior bottoms of the garage door do not match what was existing (Marks on the concrete). There is bare wood showing at both locations.

Contractor should restore the exterior bottoms of the garage door to existing condition.

Contractor should make repairs by appropriate means.

Compliance Item: 2 - Garage door not centered. Frame bent and wires from door opener hanging.

Investigator’s Observation: There is no evidence suggesting the garage

door is not centered anymore. The roller rails are not bent. The low voltage wires are not secured.

Contractor should secure all garage door opener low voltage wires.

Contractor should repair by appropriate means.

Compliance Item: 3 - Concrete patch at the bottom of garage is not painted.

Investigator’s Observation: Concrete patch in garage is not painted.

Patch should be painted. Contractor should make repairs by appropriate

means.

Compliance Item: 5 - Hall bathroom not complete.

Investigator’s Observation: The hall bath has not been remodeled. Hall

bathroom should be completed per contract.

Contractor should make repair/finish by appropriate means.

Compliance Item: 6 - Outside stucco repairs, wood repairs, caulk and paint

not done properly.

Investigator’s Observation: There are some areas of the stucco that were not repaired before painting. Also, the paint is not covering properly.

Contractor should make all necessary stucco repairs and make sure no "old paint" can be seen through the new paint.

Contractor should make repairs by appropriate means.

Compliance Item: 7 - Two bathroom windows never replaced.

Investigator’s Observation: The original bathroom windows are still present.

Contractor should replace two bathroom windows per contract.

Contractor should make repairs by appropriate means.

Compliance Item: 9 - Master bath not complete

Investigator’s Observation: The hall bath has not been remodeled.

Master bath remodel should be completed per contract.

Contractor should make repairs/finish by appropriate means.

Compliance Item: 10 - Rotten wood around window at front bedroom not

complete.

Investigator’s Observation: The finish on the window in the front

bedroom is rotted/deteriorating.

Contractor should make repairs by appropriate means.

Compliance Item: 11 - Ceiling in kitchen needs repair where light was installed.

Investigator’s Observation: There are areas on the ceiling in the kitchen

that need repair as a result of light install.

Contractor should make repairs by appropriate means.

Compliance Item: 12 - Three windows windows in the back of the home

never replaced.

Investigator’s Observation: There are three windows in the back of the

home that the contractor agreed to replace that are not replaced.

Contractor should finish 3 window replacements per contract.

Contractor should finish windows by appropriate means.

Compliance Item: 13 - Small wall at back porch not completed.

Investigator’s Observation: There is supposed to be a wall built at the

back porch. There is no wall present.

Contractor should finish small wall per contract.

Contractor should complete by appropriate means.

Compliance Item: 14 - GFI door replaced backward and not painted.

Investigator’s Observation: The GFI outlet cover at the back patio is

installed backward and unpainted.

Contractor should paint cover and switch to original operation.

Contractor should repair by appropriate means.

Compliance Item: 19 - Paint on concrete, fence, block wall.

Investigator’s Observation: There are paint splatters on the concrete,

hoses, small fridge, the wood gate and the block wall has overspray and

splatters on it.

Contractor should remove paint from unwanted surfaces by appropriate

means.

Compliance Item: 21 - Security door does not open/close properly

Investigator’s Observation: Contractor should ensure security gate

works as intended.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 4 - Drywall and texture paint not completed inside of garage.

Investigator’s Observation: There was no visible area where drywall was not completed in garage.

Compliance Item: 8 - New keypad never installed .

Investigator’s Observation: The existing keypad appears to be the old one. There is nothing on the contract that indicates a new garage keypad will be installed.

Compliance Item: 15 - All angle stops not replaced.

Investigator’s Observation: Water shutoffs in bathrooms have not been

replaced. It is unclear if this was included in the contract.

Compliance Item: 16 - Power wash paint /stucco all over yard. Litter in my yard.

Investigator’s Observation: This item is not a workmanship issue.

Compliance Item: 17 - Stucco/Paint in hallway drain

Investigator’s Observation: Hallway bath drain had been cleaned out.

Compliance Item: 18 - Pins in self closing door not properly replaced. Door

does not close properly.

Investigator’s Observation: There was no evidence of the wrong pins in the door hinges. Door operated fine at inspection.

Compliance Item: 20 - Improper clean-up. sunflower seeds in rocks, painting materials thrown in trash.

Investigator’s Observation: This item is not a workmanship issue.

Compliance Item: 22 - Master bath did not remove /replace faucet.

Investigator’s Observation: There is no new faucet in the master bath.

There is nothing in the contract indicating there should be a new faucet in the master bath.

Compliance Item: 23 - Items missing from garage

Investigator’s Observation: This is not a workmanship issue

Compliance Item: 24 - Truss on back beam not flush

Investigator’s Observation: The bracket at the bottom of the post on the

back patio is ok.

All errors in original.

Following the expiration of the time frame delineated in the Written Directive, the parties advised Investigator Wiskow that none of the work required by the Written Directive was completed.

A Compliance Inspection was not conducted due to the fact that no further work was performed on the project.

On June 8, 2021, Investigator Wiskow issued a Warning Letter to Respondent advising that contracting with a suspended or inactive license is a violation of A.R.S. § 32-1151, and that contracting or offering to contract with a suspended or inactive license is a violation of A.R.S. § 32-1154(A)(17).

Investigator Wiskow 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.R.S. § 32-1154(A)(22).

Investigator Daniel Edwards testified that Investigator Wiskow had been the assigned investigator for this Complaint, however, because Investigator Wiskow is no longer employed with the Registrar, Investigator Edwards appeared at the hearing to provide testimony regarding the investigation of this matter. Investigator Edwards testified that Respondent’s license was suspended on September 1, 2020, for non-renewal, and that the parties contracted on December 23, 2020, while Respondent’s license was suspended. Investigator Edwards further testified that as of September 1, 2021, Respondent had not renewed its license, and therefore, the license expired and Respondent now has to go through the process of applying for a new license.

Investigator Edwards testified regarding the photographs taken during the jobsite inspection and correlated the photographs to the items of Complaint.

Complainant testified that Respondent abandoned the project and that Respondent’s workmanship was poor. Complainant referenced the jobsite inspection photographs as well.

Mr. Kreidel testified that he was unaware that Respondent’s license was suspended as he had been going through a divorce. Mr. Kreidel further testified that when he became aware of the fact that the license was suspended for nonrenewal, he did not have the financial capacity to pay the renewal fees. Mr. Kreidel asserted that he wanted to complete the project, but cannot do so because Respondent is no longer licensed. Mr. Kreidel further contended that the workmanship deficiencies are due to the fact that the project is incomplete.

Mr. Kreidel acknowledged that the project is incomplete, and asserted that if Respondent’s license had not been suspended, Respondent would have complied with the Written Directive.

Administrative notice is taken of Respondent’s prior License record on October 13, 2021. Such prior License record reflects that Respondent’s License No. 321294 was first issued on August 14, 2018, and expired on August 31, 2020. Such prior License record also reflects that there are no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s expired license does not deprive Complainant of her right to prosecute her Complaint or prevent the Registrar from determining the merits of the Complaint. See A.R.S. § 32-1154(D).

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 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 listed 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.

. . . .

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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

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

The credible, substantial, and probative evidence of record further established that Respondent did not compete the corrective work following the Written Directive being issued. While Respondent’s suspended license status precluded Respondent from performing corrective work, because the suspension was due to non-renewal, Respondent could have renewed its license within sufficient time to comply with the Written Directive, yet failed to so do. Allowing a licensee to avoid performance of a contract, after accepting payment on the contract while its license was suspended, without any disciplinary action, fails to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. 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 revoke Respondent’s License No. 321294.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, October 15, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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