ALJDEC decisions subject to certification as final

2021A-02522-CHC-ROC · Registrar of Contractors · 2021-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fariborz Ghafoori,

COMPLAINANT

Adams Construction and Consulting LLC

License No. ROC 305387,

RESPONDENT

No. 2021A-02522-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2021, with the record held open until December 3, 2021 for submission of written closing arguments.

APPEARANCES: Complainant Fariborz Ghafoori appeared via Google Meet. Respondent Adams Construction and Consulting LLC was represented by David Williams Esq. appearing via Google Meet. John Smith, Registrar of Contractors Investigator also appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Adams Construction and Consulting LLC (Respondent) is the holder of License No. 305387 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 25, 2021 and February 18, 2021, Fariborz Ghafoori (Complainant) signed contracts with Respondent for remodeling of the guest bathrooms in the hallway and the guest bedroom. The total amounts for the contracts were $22,950.00.

On or about June 4, 2021, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Smith.

On June 8, 2021, Warning Letters were sent by Investigator Smith informing Respondent there may be violations for failing to obtain necessary permits and as well as failing to meet the minimum elements of a contract.

The jobsite inspection was performed on June 22, 2021.

Investigator Smith then issued a written directive on or about June 28, 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 July 28, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

The Respondent is required to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...

Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b) : Violation of any rule adopted by the registrar, Namely R 4-9-108: (B) A contractor shall perform work in accordance with any applicable building codes and professional industry standards.

Complaint Item 2: “...did not install vanity, wall light, shower, toilet, or toilet flush plate in the hall bathroom.”

Investigator’s Observations: This allegation is verified.

Work on the hallway bathroom is currently incomplete.

There is no vanity installed.

There is no wall light installed, however; the complainant stated he no longer wants a wall light installed.

The shower is incomplete.

There is no toilet, or needed/related wall mounting plate installed.

The respondent stated he stopped working on the project due to lack of payment.

Based on the terms of the contract, the respondent is not currently due any payments.

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.

Complaint Item 3: “Did not complete the lighting in the hall bathroom.”

Investigator’s Observations: This allegation is verified.

The contract states: “Move electrical for wall sconce light”, however; the complainant stated he no longer wants a wall light installed.

The contract states: “Install up to 4 can lights”. Currently these are no can lights in the hallway bathroom.

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.

Complaint Item 4: “Did not tile the walls of the bathroom.”

Investigator’s Observations: This allegation is verified.

The contract states: “Install approximately 200 square feet of wall tile...” There is also a later agreement confirmed by text message that the tile would be installed to the ceiling for an additional fee.

Quote from text “...$6,800.00 on all the increased tile square footage and mosaic...” Texted response:

“Ok sounds good.”

Currently tile on the walls, including the walls of the shower, remains incomplete.

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.

Complaint Item 5: “Did not install screens on windows.”

Investigator’s Observations: This allegation is verified.

The respondent acknowledged there are three windows that need to have the sin screens installed on the exterior. One in the hallway bathroom, one in the guest bedroom bathroom, and one in the guest bedroom.

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.

Complaint Item 6: “Did not install floor tile in hall bathroom.”

Investigator’s Observations: This allegation is verified.

The respondent acknowledged he verbally agreed to install the floor tile in the hallway bathroom.

The floor tile in the hallway bathroom remains incomplete.

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.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were discovered:

Investigator’s Observations: The respondent’s contract is missing the following information:

• Business address of the contractor

• An estimated date of completion

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158

Investigator’s Observations: The following portions of this project are permit required work.

• Removing and filling in windows.

• Adding recessed can lighting in ceiling(s)

• Modifying electrical wiring in walls and ceilings

• Saw cutting foundation

• Modifying plumbing below foundation and inside walls

This work was performed without a permit being obtained.

The respondent’s contracts specify “Contractor agrees to secure any permits necessary...”

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code...

Governing Rule: A.R.S. § 32-1154 (A)(3)(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards...

REQUIRED CORRECTIVE ACTION:

The Respondent is required to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

(All errors contained in the original)

On August 11, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about August 26, 2021, Respondent e-mailed an Answer to the Registrar.

On or about September 8, 2021, a Notice of Hearing was issued setting a hearing on October 20, 2021 at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on November 16, 2021.

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

Investigator Smith testified that Jeff Adams requested access to the home to measure for the structural engineer, and Complainant agreed to allow the same on July 7, 2021. Because of this, Investigator Smith extended the deadline to complete the work to August 6, 2021.

Investigator Smith testified as to what happened on July 7, 2021, and requested that Mr. Adams provide a copy of the police report, but Respondent failed to provide the same.

Investigator Smith acknowledged that while Mr. Adams was attempting to obtain a structural engineer, it was his belief that Mr. Adams did not provide a confirmation of the same as of August 4, 2021, so Investigator Smith did not extend the deadline due to lack of a good faith effort.

Investigator Smith then testified that he reached out to Complainant on August 9, 2021, and Complainant informed him that no permits were obtained and all of the work was in the same condition from the jobsite inspection.

Investigator Smith testified that removing and filing in windows, adding the recessed lighting, modifying the electrical wiring in walls and ceilings, and the saw cutting in the foundation to modify the plumbing all required a permit. He added that because the work included the foundation slab, a structural engineer was needed.

In addition, Investigator Smith testified that while at the jobsite inspection Complainant was unsure of pursuing a civil case or continue with his Complaint, ultimately, Complainant agreed to allow for access to complete the directive.

Investigator Smith also testified that he was not aware of any threats made by Complainant to Mr. Adams, and that Complainant did not have to allow access after the directive expired.

As to the contract issue, Investigator Smith reviewed Respondent’s Exhibit Q and acknowledged that this new contract would meet the statutory requirements.

Complainant testified on his own behalf as well as calling a witness, Kevin Curtis to testify and offered 26 exhibits into evidence.

Mr. Curtis testified that he was the subcontractor on the job and completed 90% of the work. Mr. Curtis testified generally that there was no direction from Respondent and it was chaos as there were no plans or guidance.

Mr. Curtis also testified that to his knowledge, the incomplete work in the directive was not performed by him nor Respondent.

Complainant testified that when he hired Respondent he was very busy and trusted him, but he should have checked for references. Complainant testified that Mr. Adams lied about having insurance and trusted that Mr. Adams was going to obtain the necessary permits.

As to what happened on July 7, 2021, Complainant testified that he contacted Mr. Adams around 1:00 p.m. informing him that he was at home ready for Mr. Adams to come and measure. Complainant then testified that Mr. Adams stated he was waiting for the police, and Complainant then was e-mailing him back and forth requesting Mr. Adams to come in but Mr. Adams informed him that the Mesa Police standby said Mr. Adams could leave.

Complainant testified that he limited all communication to e-mail so there would be no confusion, therefore he did not answer any of Mr. Adams’ telephone calls.

Complainant also testified that he received an e-mail on August 11, 2021 from Mr. Adams requesting access to measure, but he refused the same because the directive had expired.

Complainant testified that at no time did he drive by Mr. Adams’ home but told Mr. Adams that he was going to video tape any time Mr. Adams was in the home to protect both parties.

Respondent offered the testimony of Jeff Adams and offered seventeen exhibits into evidence.

Mr. Adams testified that there were delays with the project because Complainant’s parents were visiting, in addition to numerous changes by Complainant such as moving then removing a window, and delays on obtaining the specialty materials Complainant requested.

Mr. Adams testified that he stopped work because additional monies were owed and Complainant refused to pay for the same.

As to the permits, Mr. Adams testified that at first he did not believe he needed to obtain the same because he believed that he was not doing work that required a permit. Further, Mr. Adams testified that he agreed to obtain the permits but that Complainant did not wish to pay for the same. Mr. Adams testified though that he agreed to obtain the permit but needed to hire a structural engineer first to determine any damage to the post tension.

Mr. Adams testified that once the directive was issued, he immediately contacted several structural engineers, but most were two months out on scheduling so he kept searching until he found one.

Mr. Adams testified further that he believed he was keeping Investigator Smith in the loop as to the status with obtaining the structural engineer as evidenced by the e-mails in Respondent’s Exhibit L. He also testified that he did not request a further extension, because he did not believe that Investigator Smith would grant the same.

Next, Mr. Adams testified that on July 7, 2021, he was going to come to Complainant’s residence to obtain measurements for the structural engineer. He testified further that he informed Complainant that a police officer would be attending due to the “drive-by” that Complainant had done. Mr. Adams testified that the police informed him that if there was a problem between the parties, that he was not going to go in and would not allow Mr. Adams to go in.

Mr. Adams testified that if he could have obtained the permit, he would have been able to complete the work.

Finally, Mr. Adams testified that the contract provided in Respondent’s Exhibit Q, now met all of the requirements per the statute and was using that contract going forward.

Administrative notice is taken of Respondent’s prior License record on December 10, 2021. Such prior License record reflects that Respondent’s License No. 305387 was first issued on May 20, 2016, 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 credible evidence established that a permit was required for the work and Respondent failed to obtain the same at the outset. The Tribunal sympathizes with Mr. Adams regarding the availability of trying to find a structural engineer, but the fact remains, a permit should have been obtained at the outset and was so mentioned in the contract between the parties. The Tribunal also finds that Mr. Adams’ concerns with his safety to be unfounded when no evidence other than a comment by Complainant that the work be video recorded, explained his concern for the need of a police standby. Rather, the evidence demonstrated that Complainant waited for at least four hours for Mr. Adams to come in and measure so the permit process could move forward. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3) - R4-9-108(B).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Adams did not dispute that the work in the directive was incomplete, only that he could not complete the work due to lack of a permit and payment. As to the payment issue, it appears that Complainant complied with the terms of the contract as written. 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 preponderance of the evidence established, and Mr. Adams admitted, that the contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158. However, the Tribunal finds that Respondent’s new contract going forward meets the statutory requirements thus, there is no discipline for the same.

The evidence established and Mr. Adams admitted that he failed to complete the corrective work following the Directive being issued. Again, Mr. Adams’ testimony that he did not want to go into Complainant’s house on July 7, 2021 because the police informed him not to, was unpersuasive. Mr. Adams could have had everything measured and ready to go for the structural engineer to review for a permit. Again, the Tribunal is sympathetic to the current delays in the construction industry, but in this case, Mr. Adams had the opportunity to move forward and failed to do so. 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. 305387 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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.

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-137160-45720000Done this day, December 10, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000