ALJDEC decisions subject to certification as final

2021A-02370-CHC-ROC · Registrar of Contractors · 2022-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alison Tate,

COMPLAINANT,

v.

T Baxter Enterprises, LLC

License No. ROC 266258,

RESPONDENT.

No. 2021A-02370-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 4, 2022 and February 23, 2022

APPEARANCES: Complainant Alison Tate appeared on behalf of herself. William O’Leary, Esq. appeared on behalf of Respondent T Baxter Enterprises, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent T Baxter Enterprises, LLC (T Baxter) holds license number 266258 issued by the Registrar of Contractors (ROC).

2. T Baxter’s qualifying party is Tyler Jay Baxter.

3. In January of 2019, T Baxter and Complainant Alison Tate entered into a new home construction contract. See the ROC’s administrative record, pgs. 168-169.

4. In January of 2019, T Baxter began work. See the ROC’s administrative record, pg.168.

5. On May 28, 2019, T Baxter stopped work and completed construction of the home. See the ROC’s administrative record, pg.168.

6. On May 30, 2019, Ms. Tate moved into the home. See the ROC’s administrative record, pg.168.

7. On May 26, 2021, Ms. Tate filed a complaint with the ROC alleging poor workmanship on the part of T Baxter. Ms. Tate listed the following items in the complaint:

1. Air filter box in ceiling doesn't properly fit air filters in it

2. drawers aren't working properly (trash pull, laundry room, and various kitchen drawers)

3. large gap between stucco and roof in back of house

4. grout in master shower is lifting in multiple spots

5. major heaving with pavers in driveway and entryway

6. paint is peeling on exterior of the house in the backyard

7. various unfinished paint spots in back of house (one on patio cover, one under MIL suite entry)

8. On June 23, 2021, ROC Investigator David Thomas conducted a job-site inspection. Ms. Tate was present at the job-site inspection. During the inspection,

Ms. Tate notified Investigator Thomas that T Baxter performed poor work in connection with the courtyard wall/gate and the door leading to the garage. Investigator Thomas told Ms. Tate to send him an e-mail regarding the additional complaint items.

9. On June 26, 2021, Ms. Tate requested by e-mail that Investigator Thomas “add the courtyard wall/gate to our complaint and the garage door as well.” See the ROC’s administrative record, pg. 67.

10. Investigator Thomas substantiated complaint items 1 through 5, 7, and the additional items included in Ms. Tate’s June 26, 2021 e-mail. See the ROC’s administrative record, pgs. 76-78.

11. Investigator Thomas was unable to verify complaint item 6.

12. On July 28, 2021, the ROC issued a Directive to T Baxter. See the ROC’s administrative record, pgs.71-74. The Directive provided, in relevant part, as follows:

Dear Respondent: 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. August 13th, 2021.

...............................................................

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

Compliance Item: 1 - Air filter box doesn't properly fit air filters in it. Investigator’s Observation: This complaint item is verified. Mounting screws possibly restricting correct fitment of filter. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - drawers aren't working properly (trash pull, laundry room and various kitchen drawers)

Investigator’s Observation: This complaint item is verified. Multiple drawers in laundry room and kitchen pull hard and binding. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - large gap between stucco and roof in back of house Investigator’s Observation: This complaint item is verified. where stucco meets wood beam on back porch (right side looking at house) Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - grout in master shower is lifting in multiple spots. Investigator’s Observation: This complaint item is verified. Multiple areas where shower floor tile and wall tile meet have areas of missing grout. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - major heaving with pavers in driveway and entry. Investigator’s Observation: This complaint item is verified. Multiple areas of driveway and front door entry has sinking, lifting or uneven / wavy pavers. Multiple pavers more than 1/8 inch in height. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - various unfinished paint spots in back of house (one on the patio cover, one under the MIL suite entry

Investigator’s Observation: This complaint item is verified. Paint at porch light at mother-in-law entrance not painted as well as roller marks. Paint on beam does not match where repainted .Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Courtyard gate wall out of square.

Investigator’s Observation: This complaint item is verified. CMU gate wall is approximately 1 to 1.5 inches out of square in 3 linear feet on both sides of entry gate.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Garage / laundry room entrance door does not close correctly.

Investigator’s Observation: This complaint item is verified. Garage / laundry room entrance door out of adjustment. lower portion of door does not touch door weather stripping. Door frame not set correctly or door is warped more than 1/4 inch.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 6 - paint is peeling on exterior of the house in the backyard

Investigator’s Observation: This complaint item is unverified. Complainant stated this was corrected by respondent on 06/17/21. Governing Rule: NA

13. On September 7, 2021, Investigator Thomas conducted a compliance job-site inspection. Investigator Thomas observed that T Baxter appropriately corrected complaint items 1, 3, 4, and 7. Investigator Thomas concluded that T Baxter had failed to appropriately correct complaint items 2, 5, 8, and 9. See the ROC’s administrative record, pgs.87-89.

14. On September 16, 2021, the ROC issued a Citation against T Baxter’s license. Through the Citation, the ROC alleged that T Baxter may have violated Arizona Revised Statutes (A.R.S.) section 32-1154 (A)(3) and (A)(22); Arizona Administrative Code (A.A.C.) R4-9-108(a).

15. T Baxter filed a timely answer to the Citation.

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. A hearing was held on January 4, 2022.

18. Before the conclusion of the hearing on January 4, 2022, the parties requested additional time to resolve the matter. During that time, T Baxter appropriately corrected complaint item 2. See the February 23, 2022 Hearing audio record at 12:00 to 13:00 minutes.

19. A further hearing was held on February 23, 2022.

20. At hearing, Ms. Tate testified on behalf of herself. Mr. Baxter testified on behalf T Baxter. Investigator Thomas testified regarding his investigation of the complaint and the issuance of the Directive.

21. Ms. Tate explained that T Baxter performed poor work when it build her new home. Ms. Tate stated that T Baxter made repairs to her garage door after she moved into the home. However, Ms. Tate did not recall the dates that T Baxter performed work after she moved into her home.

22. Mr. Baxter stated that he did not realize that the due date listed in the Directive was a strict compliance date. See the January 4, 2022 Hearing audio record at 1:24 – 1:26.

23. T Baxter contended that the complaint should be dismissed because complaint items 8 and 9 were filed after the expiration of the statute of limitations for ROC complaints.

24. Administrative notice is taken of the ROC’s public website. According to the information available on the website on March 15, 2022, T Baxter’s license was first issued on September 22, 2010, and is active. Such prior License record also shows that there is only one open complaint against T Baxter. T Baxter’s license has never been disciplined. T Baxter’s lack of disciplinary history is considered a mitigating factor in the imposition of penalties.

CONCLUSIONS OF LAW

This matter lies within the ROC’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. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. It is undisputed that Respondent correctly repaired complaint items 1, 2, 3, 4, and 7.

6. The hearing record shows that Ms. Tate reported on the complaint that her home was completed on May 28, 2021 and that she moved into the home on May 30, 2021. Although Ms. Tate alleged that T Baxter performed work on her home after May 30, 2021, Ms. Tate did not even contend that T Baxter performed additional work on the home after she moved in, but before a year prior to the date that she amended her complaint.

7. The preponderance of the evidence shows that complaint items 8 and 9 were filed with the ROC after the statute of limitations had expired. See A.R.S. section 32-1162. Therefore, the Administrative Law Judge has no jurisdiction over complaint items 8 and 9.

8. The preponderance of the evidence shows that the issues found

by Investigator Thomas in complaint item 5 demonstrate that Respondent failed to perform work in compliance with professional industry standards in violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

9. The preponderance of the evidence shows that Respondent failed to

Correct complaint item 5 without valid justification, which is a violation of A.R.S. section 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 ROC License: No. 266258 held by T Baxter Enterprises, LLC, for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. section 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 days from the date of that certification.

Done this day, March 15, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors