ALJDEC decisions subject to certification as final

2021A-02304-CHC-ROC · Registrar of Contractors · 2021-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shelley Favish,

COMPLAINANT,

Gradias Construction Co. Inc.

License No. ROC 285099,

RESPONDENT.

No. 2021A-02304-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 1, 2021

APPEARANCES: Complainant Shelley Favish appeared on behalf of herself.

Sylvia Gradias appeared on behalf of Respondent Gradias Construction Co. Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Gradias Construction Co. Inc. (Respondent) holds

License No. 285099 issued by the Arizona Registrar of Contractors (Registrar). Sylvia Gradias and Eric Gradias are officers in Respondent.

2. Eric Gradias is Respondent’s qualifying party.

3. On or about February 22, 2021, Complainant Shelley Favish and Lester Favish entered into a contract with Respondent to remodel their home located at 10123 E. 37th St., Yuma, AZ 85365 (the property).

4. Respondent did not provide Mr. and Mrs. Favish with a written contract that advised them of their right to file a complaint with the Registrar against Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1154(A) within the time allowed by Ariz. Rev. Stat. § 32-1162(A).

5. On or about April 27, 2021, Respondent started work.

6. On or about May 13, 2021, Mr. Favish fired Respondent because

Mr. Favish believed that Mr. Gradias had performed poor work. Mr. Gradias was the only person who performed work at the property under the contract.

7. On or about May 24, 2021, the Registrar received a complaint from

Ms. Favish alleging poor workmanship on the part of Respondent.

8. On or about June 23, 2021, Investigator Ruben Perez conducted a job-site inspection. Ms. Gradias, Mr. Gradias, Mr. Favish, Mrs. Favish, and Investigator Perez were present at the job-site inspection. Mr. Favish told Ms. Gradias that he did not want Mr. Gradias performing any work at his home. See Mr. Favish’s testimony at 28:30 – 33:09 on the Hearing Record.

9. On or about June 23, 2021, the Registrar issued a Directive to Respondent. Through the Directive, the Registrar directed Respondent to correct the following items by appropriate means, prior to 5:00 p.m. on July 23, 2021. The Directive provided, in relevant part, as follows:

Compliance Item 1A: Flooring (poor work left gaps and holes in floor)

Investigator’s Observation: Floor was observed unfinished in some areas in kitchen and hallways. Floor in kitchen, hallway and hallway bathroom was also observed with gaps between planks and gaps at baseboard or wall.

Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 2: Electrical (relocated powerpoint under kitchen island and now power does not work)

Investigator’s Observation: Electrical outlets in kitchen island were observed to not work properly. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108

Compliance Item 3: Tiling (backsplash very poorly installed)

Investigator’s Observation: Back splash in kitchen was observed to be missing a tile piece at the corner. Remnants of red tape were also observed behind sink. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108 Compliance Item 4: Vent for Microwave (vent installed into attic with not outlet to outside) Investigator’s Observation: Both parties reported the vent for microwave ends in the attic. This does not comply with IRC M1501.1. The exhaust duct in the cabinet above microwave was observed unsealed, not in compliance with IRC R302.11. Respondent to correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically to Rule 4-9-108.

10. Respondent did not correct the items in the Directive by 5:00 p.m. on July 23, 2021.

11. On July 30, 2021, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated A.A.C. Rule 4-9-108(a) and Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Rev. Stat. § 32-1154(A)(12) and (22); and Ariz. Rev. Stat. § 32-1158. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

12. Respondent filed a timely answer to the Citation.

13. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

14. A hearing was held on October 1, 2021.

15. At hearing, Ms. Favish testified on behalf of herself and presented the testimony of Mr. Favish. Ms. Gradias testified on behalf of Respondent and presented the testimony of Mr. Gradias. Investigator Perez testified regarding his investigation of the complaint and the issuance of the Directive.

16. Mr. Favish explained that he would have allowed any other contractor or employee to perform work at his home. Mr. Favish contended that he fired Mr. Gradias and not Respondent. See Mr. Favish’s testimony at 33:56 to 34:58 on the hearing record. Mr. Favish stated that the only person who performed construction at his home under the contract was Mr. Gradias.

17. Mr. Gradias explained that he did not perform any work under the Directive because Mr. Favish terminated his services and did not want him to perform work at the property. Mr. Gradias explained that at the time of the contract and the Registrar’s Directive, he was the only person performing construction work for Respondent.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. 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).

4. The qualifying party is responsible for supervising the work of the licensee. See Ariz. Rev. Stat. § 32-1127.

5. Construction is not a perfect art and, generally, contractors must be

afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked.

6. The evidence presented at hearing shows that Mr. Favish would not allow Mr. Gradias to perform work at his home after he was terminated in Mary of 2021. Accordingly, the Administrative Law Judge concludes that Respondent had valid justification for failing to comply with the Directive. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

7. The preponderance of the evidence shows that grounds exist to discipline Respondent’s license under Ariz. Rev. Stat. § 32-1158 because Respondent did not provide Mr. and Mrs. Favish with a contract did that advised them of their right to file a complaint with the Registrar against Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1154(A) within the time allowed by Ariz. Rev. Stat. § 32-1162(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended for three 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 days from the date of that certification.

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-137160-45720000Done this day, October 21, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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