ALJDEC decisions subject to certification as final
2021A-02510-CHC-ROC · Registrar of Contractors · 2021-11-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dan Deary,
COMPLAINANT
v.
Home Improvements By R M S LLC
License No. ROC 195318,
RESPONDENT.
No. 2021A-02510-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 22, 2021
APPEARANCES: Complainant Dan Deary appeared on behalf of himself. Ronald Mendicino appeared on behalf of Home Improvements By R M S LLC
License No. ROC 195318.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about October 27, 2020, Complainant Dan Deary and Respondent
Home Improvements By R M S LLC (Home Improvements) entered into a residential remodeling contract.
2. On January 17, 2021, Home Improvements began work under the contract.
3. On April 16, 2021, Home Improvements stopped work.
4. On or about June 3, 2021, Mr. Deary filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor work on the part of Home Improvements.
5. On June 30, 2021, Investigator Chris Fultz conducted a job-site inspection.
6. On July 14, 2021, Investigator Fultz issued a Directive to Home Improvements. Under the Directive, Home Improvements was required to make the following corrections:
Compliance Item: 2 - Shower Tile. There have been three attempts (original work and two reworks) to get the tile correct and there are still issues with it. The contractor (RMS) feels the work is up to standards. In order to get an unbiased professional opinion of the work, I contracted with a licensed Tile and Stone Consultant to inspect the work performed and provide me a detailed written report. His report confirms multiple problems along with a detail of work that was not completed to ANSI workmanship standards. The report is attached.
Investigator’s Observation: After reviewing the report provided and looking at ROC standards. There were a few issues with the shower tile work that need to be addressed and corrected by appropriate means. Those issues are in the report provided by the homeowner and are items: 2,4,6,8,9,11 and 12.
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 - Vanity: Poor quality. The RMS's subcontractor already once replaced all drawer faces due to the faces being screwed in incorrectly, resulting in extra holes and cracked drawers. Partial drawers were then replaced a second time as the quartz subcontractor damaged multiple drawers and cabinet faces during the installation. The result is mismatched drawer and cabinet faces (darker color) and the drawer faces are still cracked inside as nearly all of them were screwed in incorrectly again. Upon closer inspection the clear coat is very thin which is resulting in water stains and a "haze" appearance. Photo documentation is available upon request
Investigator’s Observation: There are issues with the cabinet installations. There can't been cracked wood or broken hardware installed. As for the slight difference in color of the new drawer faces, these were replaced and the stain can change from batch to batch or from different cuts of wood on how they take the stain. These drawer fronts meet standard. Dark wood will always show water spots if water is felt to dry on it. This is a homeowner maintenance issue. As for the cracked drawers these will need to be repaired 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: 6 - Outdoor electrical outlet which was added is pulling away from the home and does not appear to be secured properly. Photo documentation is available upon request
Investigator’s Observation: The outlet is not properly secured to the home and will need to be repaired 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.
7. The Directive included a deadline of August 14, 2021. However, at the time that the Directive was issued, Mr. Deary was unclear of the specific repairs that Home Improvements was required to perform.
8. After Mr. Deary obtained an understanding from Investigator Fultz regarding the required repairs, Mr. Deary allowed Home Improvements to come to his home to make repairs beginning July 26, 2021, Monday through Friday, from 8:00 a.m. to 5:00 p.m.
9. Investigator Fultz notified the parties that the Directive would be extended an additional two weeks.
10. Home Improvements began performing corrective work on August 3, 2021.
11. Home Improvements did not complete the corrective work by August 14, 2021.
12. On August 24, 2021, the ROC issued a Citation against Home Improvements’s license. Through the Citation, the ROC alleged that Home Improvements may have violated A.A.C. Rule 4-9-108(a) and Arizona Revised Statues § 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(22). 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.
13. Respondent filed a timely appeal to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
15. At hearing, Mr. Deary testified on behalf of himself. Ronald Mendicino testified on behalf of Home Improvements. Investigator Fultz testified regarding his investigation of the compliant and the issuance of the Directive.
16. Mr. Deary explained that he did not allow Home Improvements to make repairs under the Directive for the first two weeks because Mr. Deary was uncertain of the specific repairs that Home Improvements was required to correct.
17. Mr. Deary explained that he inquired with Investigator Fultz whether the Directive was extended and Investigator Fultz told him that the Directive deadline was August 14, 2021. Mr. Deary explained that based upon the information from Investigator Fultz regarding the Directive deadline, he cancelled the appointments that Home Improvements had made to correct the work just a few days after the August 14, 2021 deadline.
18. Investigator Chris Fultz testified to the effect that he initially told the parties that the Directive would be extended for two weeks because Home Improvements was not allowed to begin making repairs for two weeks. However, Investigator Fultz stated that he was aware that Home Improvements has scheduled to complete repairs a couple of days after the expiration of the original Directive due date. As a result, Investigator Fultz did not believe that it was necessary to extend the Directive an additional two weeks. However, there was no evidence presented at hearing that Fultz told Home Improvements that the Directive would not be extended an additional two weeks.
19. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on November 10, 2021, Respondent’s license was issued on May 3, 2004, and is active. Such prior License record history shows that there is one complaint open against Respondent’s license. The Registrar has not imposed discipline on Respondent’s license.
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. 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. The preponderance of the evidence does not show that Respondent failed to perform the work described in complaint item 1 in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(b).
6. 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.
7. The preponderance of the evidence shows that the issues found
by Investigator Fultz in complaint items 2, 3, and 6 demonstrate that Respondent failed to perform work in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
8. The preponderance of the evidence shows that although the written Directive granted a month for compliance starting on July 14, 2021, Home Improvements was only given less than two weeks to correct work. The homeowner did not allow Home Improvements on his property until July 26 2021. Although Investigator Fultz notified the parties that the Directive would be extended for two weeks, Investigative Fultz did not notify Home Improvements that he later decided that the would not be extended. The Administrative Law Judge concludes that Home Improvements was not allowed the full time given under the Directive to make repairs. Because Deary was informed that the deadline was for compliance was August 14, 2021, the Administrative Law Judge concludes that Home Improvements should be given an additional opportunity to make repairs under the Directive.
RECOMMENDed order
In view of the foregoing, it is recommended that Home Improvements By R M S LLC fully comply with the terms of the written Directive issued in this matter within 30 days of the effective date of the Registrar’s Order.
If the Registrar of Contractors receives and accepts written proof that Home Improvements LLC has fully complied with the terms of the written Directive issued in this matter within 30 days of the effective date of the Registrar’s Order, then this matter shall be closed.
If the Registrar of Contractors does not receive and accept written proof that Home Improvements By R M S LLC has fully complied with the terms of the written Directive issued in this matter within 30 days of the effective date of the Registrar’s Order, then commencing on the 31st day of the effective date of the Registrar’s Order, License No. 183637 of Home Improvements By R M S LLC, that License No. 195318,
of Home Improvements By R M S LLC shall be suspended for a period of three days.
It is further recommended that if Home Improvements LLC provides acceptable written evidence it has been denied reasonable access to Dan Deary’s property after the effective date of this Order, then the above-provided License suspension shall not take place and this matter shall be closed.
It is further recommended, in addition to the above-provided penalties, if any, that Home Improvements By R M S LLC pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.
Done this day, November 10, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors