ALJDEC decisions subject to certification as final
2021A-03882-CHC-ROC · Registrar of Contractors · 2022-05-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Monica Lynn Slater,
COMPLAINANT
v.
Intrex Corporation
License No. ROC 088458,
RESPONDENT
No. 2021A-03882-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 22, 2022
APPEARANCES: Complainant Monica Lynn Slater appeared on her own behalf via Google Meet. Jeff Heidorf appeared via Google Meet on behalf of Respondent Intrex Corporation. Investigator Robert Mcquien appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Intrex Corporation (Respondent) is the holder of License No. 088458 issued by the Arizona Registrar of Contractors (Registrar).
On or about April 6, 2021, Monica Lynn Slater (Complainant) purchased a home built by Respondent for $147,500.00.
On or about August 11, 2021, the Registrar received a Complaint containing twenty-four items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Robert Mcquien. The jobsite inspection was performed on September 2, 2021 with all parties present.
Investigator Mcquien then issued a written directive on or about December 28, 2020 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 September 22, 2021.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - All baseboards not calked, sanded or painted.
Investigator’s Observation: Work incomplete, not caulked and finished.
CONTRACTOR TAKE CORRECTIVE ACTION.
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 - All molding around doors not calked, sanded or painted.
Investigator’s Observation: Work incomplete, not caulked and finished.
CONTRACTOR TAKE CORRECTIVE ACTION.
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 - All doors are not painted both sides.
Investigator’s Observation: Finish work not complete. CONTRACTOR
TAKE CORRECTIVE ACTION.
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 - Paint thru out house is not finished.
Investigator’s Observation: Trim work not complete. CONTRACTOR
TAKE CORRECTIVE ACTION.
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 - There are 2 colors of paint both bleed into each other.
Investigator’s Observation: Trim work not complete. CONTRACTOR TAKE CORRECTIVE ACTION.
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 - Finish pieces of wood missing in kitchen.
Investigator’s Observation: Wood is present, just not stained. CONTRACTOR TAKE CORRECTIVE ACTION.
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 - Flooring thru out house is gaped no calking.
Investigator’s Observation: Work incomplete not finished. CONTRACTOR TAKE CORRECTIVE ACTION.
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 - All casing around doors not finished.
Investigator’s Observation: Work incomplete, not caulked and finished.
CONTRACTOR TAKE CORRECTIVE ACTION.
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 - All interior doors are not level or squared.
Investigator’s Observation: Master bedroom door is not square. CONTRACTOR TAKE CORRECTIVE ACTION.
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: 10 - Exterior of home stucco is cracked all over.
Investigator’s Observation: Cracking exterior stucco present. CONTRACTOR TAKE CORRECTIVE ACTION.
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.
(All errors contained in the original)
On January 11, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).
On or about January 26, 2022, Respondent provided an Answer to the Registrar.
On or about February 4, 2022, a Notice of Hearing was issued setting a hearing on March 17, 2022 at the Office of Administrative Hearings, an independent state agency.
After a continuance, a hearing was held on April 22, 2022.
At hearing, Investigator Mcquien testified as to his involvement and the above timeline.
Investigator Mcquien testified that while the initial timeline to complete the Directive was September 22, 2021, the parties had agreed several times to extend the time. Ultimately, the deadline was extended to December 10, 2021.
Investigator Mcquien testified that he was also made aware of some remaining issues with the paint, and he ultimately did not refer the case to the legal department until January 10, 2022.
As to the Written Directive, Investigator Mcquien testified that all of the compliance items but for number 5 (the paint matching) had been satisfactorily completed according to the Registrar’s standards.
Investigator Mcquien testified that as to compliance item 5, he was under the impression that Respondent was experiencing troubles obtaining matching paint, which is why he waited an additional 30 days to submit the case to the legal department.
Finally, Investigator Mcquien testified that he believed the there was sufficient time to complete all of the Directive items.
Complainant testified generally that she did not believe that all of the Directive items were completed. Specifically, it was her testimony that only items 6 and 10 were completed.
As to the paint issue, Complainant testified that the paint was still bleeding though and that the paint that was used to perform the corrections was “too white”.
Respondent presented the testimony of Jeff Heidorf and Richard Dobski.
Mr. Heidorf testified that he was first presented a list of items to repair by Complainant’s sister, and fully repaired the items. He testified that they have been trying to please Complainant and did everything to attempt to satisfy.
Mr. Heidorf believed that all Directive requirements had been completed.
Next, Ricahrd Debski testified. Mr. Debski testified that he was the painter on the project and completed all items as to the baseboards and trim. As to the doors, Mr. Debski testified that he took all of the doors off and took them to the project next door to repaint. He further that he sanded, primed and painted the doors and matched as the paint came from the same bucket of paint.
Administrative notice is taken of Respondent’s prior License record on May 6, 2022. Such prior License record reflects that Respondent’s License No. 088458 was first issued on December 10, 1990, and reflects that there is 1 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 the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Heidorf did not dispute that there were issues with the work performed. 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.
The evidence established that as to items 1, 2, 3, 4, 6, 7, 8, 9 and 10, Respondent was in compliance with the Directive and therefore was not in violation of A.R.S. § 32-1154(A)(22).
As to the item 5, the paint issue, both Mr. Mcquien and Complainant testified that the paint still had not matched. However, there was nothing in the Registrar’s file nor did the Complainant provide any proof that the paint still did not match. Further, there was no evidence that Investigator Mcquien completed a Compliance Jobsite inspection to determine if the paint matched. Rather he relied on Complainant to inform him of the same. Likewise, Respondent failed to provide any photographs supporting its position. Thus, the Tribunal cannot adequately determine if the painting now matches. Therefore, Complainant has not met its burden to prove that the paint still did not match. Thus, there was no preponderance of the evidence demonstrating that Respondent failed to take the appropriate corrective action 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 dismiss Complainant’s complaint 2021-03882.
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.
-54864001
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-137160-45720000Done this day, May 6, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary