ALJDEC decisions subject to certification as final
2021A-03081-CHC-ROC · Registrar of Contractors · 2022-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Adam Novak,
COMPLAINANT,
v.
Christian A. Carpenter
DBA: Everything Residential,
License No. ROC 323225,
RESPONDENT.
No. 2021A-03081-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 19, 2022
APPEARANCES: Complainant Adam Novak appeared on behalf of himself. Andrew R. DiCarlo, Esq. appeared on behalf of Respondent Christian A. Carpenter
DBA: Everything Residential.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Christian A. Carpenter DBA: Everything Residential (Mr. Carpenter) holds license No. 323225 issued by the Arizona Registrar of Contractors (ROC).
2. On February 1, 2021, the ROC suspended Mr. Carpenter’s license.
3. On or about March 9, 2021, Complainant Adam Novak and Mr. Carpenter entered into a contract wherein Mr. Carpenter would remodel Mr. Novak’s home for the amount of $25,453.93.
4. On or about April 20, 2021, Mr. Carpenter started work on Mr. Novak’s home.
5. On or about July 1, 2021, Mr. Novak stopped work.
6. On or about July 4, 2021, the ROC received a complaint from Mr. Novak alleging poor workmanship on the part of Mr. Carpenter.
7. On August 4, 2021, Investigator Beau Cruz conducted a job-site inspection. Investigator Cruz discovered that Mr. Carpenter had not obtained the required permits for the construction project.
8. On August 5, 2021, the ROC issued a Directive to Mr. Carpenter that 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. on August 20, 2021.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated. License # 323225 issued to Christian A Carpenter DBA: Everything Residential was suspended for Non-Renewal on 02/01/2021, and cannot do or sub-contract the following corrective work until the suspension is lifted. Permit required for project. When permit is pulled by the owner or owner’s agent and inspected, if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to Correct by Appropriate Means.
DIRECTIVE REQUIREMENTS You are directed to remedy the following violations by the appropriate means:
Complaint Item 3: The mast bathroom bathtub was not installed correctly. The tub was not connected to the plumbing pipe therefore the bathtub water flooded the pantry and garage causing a third major water damage leak in the home. The whole ceiling and walls in the pantry were removed and redrywalled. Again no official water restoration was conducted by a certified company. We are requesting verification the plumbing errors on behalf of Everything Residential do not cause long term damage to our home. This was all outside of the scope of the project. We are seeking a report this area that had extensive water damage due to the negligence of Everything Residential.
Investigator’s Observation: Water stains noted the lower south (S) and lower east (E) walls and baseboards of the Pantry below the lower shelves.
Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.
Complaint Item 5: Threshold in the master bathroom not cut correctly and has a one inch gap.
Investigator’s Observation: Complainants allege that the respondent failed to properly finish the ends of the transition threshold between Master Bedroom and Master Bathroom, by failing to follow contours of adjoin baseboards. Respondent stated that this was a punch list item and would be corrected.
Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item 7: Master bathroom tile installed incorrectly. It is not level and smooth, it have 5 distinct areas where the tile is raised and it appears there is a mound of mortar creating the tile to pop up and not lay flat consistently throughout the project space.
Investigator’s Observation: Areas of unevenly laid tiles on the west (W) wall of Master Bathroom above vanity area.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.
Complaint Item 9: Doorstopper in master bathroom water closet missing and not installed.
Investigator’s Observation: Missing doorstopper on the baseboard of the north (N) wall in the Master Bathroom water closet room. Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above. Complaint Item 13: Caulking from the granite installation stained the new flooring and not has not been properly cleaned or repaired. Investigator’s Observation: Improper application/finish of caulking between floor tile and south (S) wall behind the Master Bathroom freestanding tub.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above. Addendums at the jobsite inspection, respondent elected to address.
Complaint Item 16: Water damage on garage wall.
Investigator’s Observation: Water staining and bubbling finish noted on east (E) wall above side access door, and above and below wall vent area.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.
9. Mr. Carpenter did not correct the items listed in the Directive by the due date of August 20, 2021. Mr. Carpenter did not resolve the dispute through a financial settlement.
10. On August 31, 2021, Investigator Cruz recommended the complaint to the ROC’s legal department for the issuance of a Citation against Mr. Carpenter’s license.
11. On September 2, 2021, the ROC issued a Citation against Mr. Carpenter’s license. Through the Citation, the ROC alleged that Mr. Carpenter may have violated Arizona Administrative Code R4-9-108(a) and (b); Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3)and (A)(22).
12. Mr. Carpenter filed a timely answer to the Citation.
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. On January 18, 2022, Investigator Cason conducted a pre-hearing inspection. Investigator Cason concluded that the only item from the Directive that had been corrected by Mr. Carpenter was complaint item 3.
15. A hearing was held on January 19, 2021.
16. At hearing, Mr. Novak testified on behalf of himself. ROC Investigator Randy Cason testified regarding Investigator Cruz’s investigation of the complaint and issuance of the Directive. Investigator Cason also provided testimony regarding his pre-hearing inspection. Mr. Carpenter testified on behalf of himself. Mr. Carpenter presented the testimony of one of his employees, Anna Taliafrerro.
17. Mr. Novak stated that he pulled and applied for permits and paid for them. Mr. Novak admitted that he did not allow Mr. Carpenter to perform corrective work during the timeframe for compliance with the Directive because Mr. Carpenter’s license was suspended.
18. Mr. Carpenter stated that he pulled and applied for permits during the project. Mr. Carpenter stated that he wanted to comply with the Directive because although his license was suspended, Mr. Carpenter was the qualifying party for another construction company that had an active license. Mr. Carpenter also stated that he discussed the issue of mold in Mr. Novak’s house at the time of the contract.
19. Ms. Taliafrerro worked as Mr. Carpenter’s employee and for the new construction company where Mr. Carpenter is the qualifying party. Ms. Taliafrerro stated that the new company should have been listed on Mr. Novak’s contract. Ms. Taliafrerro stated that the contract erroneously included Mr. Carpenter’s suspended license.
20. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 8, 2022. Such prior License record reflects that Respondent’s License No. ROC 323225 was issued on January 11, 2019 and is currently suspended. Such prior License record shows that there is one complaint open against Respondent’s license. Such prior License record shows that the ROC has not disciplined Respondent’s license. Respondent’s lack of a disciplinary history is considered a mitigating factor in the imposition of penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
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, 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).
3. The suspended status of Respondent’s license does not deprive Complainant of his right to prosecute the Complaint or prevent the ROC from determining the merits of Complainant’s complaint.
4. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
5. The preponderance of the evidence shows that Respondent did not obtain the permits required for the home remodeling project. Consequently, Respondent violated Ariz. Rev. Stat. section 32-1154(A)(2)(b) and A.A.C. R4-9-108(b).
6. Upon consideration of the evidence presented at hearing, the
Administrative Law Judge concludes that the Respondent’s work failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
7. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
8. Although Respondent was prohibited from performing corrective work or hiring another contractor to perform that work because its license was suspended, the ROC allows a contractor to comply with a directive by reaching a financial settlement with a Complainant. Respondent failed to do so and has violated subsection 32-1154(A)(22).
9. Because Respondent has violated the applicable statutes, the ROC has authority to discipline its license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. ROC 323225 issued to Christian A. Carpenter DBA: Everything Residential 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 Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. 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 is forty days after the date of that certification.
Done this day, February 8, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors