ALJDEC decisions subject to certification as final
2021A-03911-CHC-ROC · Registrar of Contractors · 2022-01-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dianne Beverly Billger,
COMPLAINANT
v.
Desert Sun Customs & Restoration, LLC
License No. ROC 240872,
RESPONDENT
No. 2021A-03911-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: January 13, 2022
APPEARANCES: Complainant Dianne Beverly Billger appeared on her own behalf. Linda Nolin appeared as a witness for Complainant. Levi Conrad appeared on behalf of Respondent Desert Sun Customs & Restoration, LLC. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Desert Sun Customs & Restoration, LLC (“Respondent”) is the holder of License No. 240872 issued by the Arizona Registrar of Contractors (“Registrar”). Levi Conrad is Respondent’s qualifying party and member.
On or about February 22, 2021, Dianne Beverly Billger (“Complainant”) contracted with Respondent for a kitchen remodel. The contract price was $24,023.18. Complainant paid Respondent in full.
On or about August 13, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator John Smith. After a September 9, 2021 jobsite inspection, Investigator Smith issued a Written Directive 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 30, 2021.
You are directed to remedy the following violations by the appropriate means:
The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections (related to the electrical) 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.
Complaint Item 1: “Kitchen Backsplash – tiles lifted – looks uneven.”
Investigator’s Observations: Verified.
Throughout the backsplash tiled areas, there are several areas of lippage that exceeds the acceptable tolerance of 1/32 inch.
Complaint Item 2: “2 floor tiles replaced – 1 is not level & did not use correct grout color”
Investigator’s Observations: Verified.
There are two floor tile in front of the dishwasher and adjoining base cabinet that were replaced by the respondent.
At least one of the two tiles has lippage that exceeds 1/32 inch.
The grout color used for the two new tiles is not a reasonably close match to the rest of the grout.
Complaint Item 3: “Grout stains left on new quartz countertops”
Investigator’s Observations: Verified.
The countertops and the backsplash tile is all new materials installed by the respondent.
The countertops are stained around the outer perimeter of the countertops, in the areas of backsplash tiles.
The color of the staining is consistent with the color of thinset and/or the grout.
Complaint Item 4: “finish next to cabinet base is oversized Improper gap near dishwasher”
Investigator’s Observations: Verified.
The grout joint between the newly installed floor tile and the front of the dishwasher is approximately one inch wide.
The width of all grout joints, including those around the perimeters, should be even consistent.
Complaint Item 5: “Electrical outlet removed – termination end point unknown.”
Investigator’s Observations: Verified.
The respondent acknowledged an outlet was removed and eliminated from the end of the countertop area, as a result of removing a “pony” wall.
Currently there is no countertop outlet to service the section of countertop from the sink to the end of the cabinets. This section of countertop is approximately 3-1/2 feet in length.
Complaint Item 6: “The kitchen post above the dishwasher has white spackle on it.”
Investigator’s Observations: Verified.
The respondent this was an area of damage resulted from removal of the “pony” wall.
The respondent also acknowledged he patched this area, and left the patch unpainted.
There is no agreement between the parties to confirm the complainant was willing to accept this repair without being painted.
Complaint Item 7: “Stove is not level with the countertops.”
Investigator’s Observations: Verified.
The top of the range is approximately 3/8 lower than the surface of the countertops.
Industry standard is for the surface of the range and the surface of the countertops to match.
Complaint Item 8: “When microwave was moved up d/t new cabinets- contractor did not align the air vent in the wall with the microwave.”
Investigator’s Observations: Verified.
The respondent confirmed:
• The microwave has been reinstalled at a higher location.
• No modifications were made to the exhaust duct in the wall.
• The microwave is not properly connected to the exhaust duct.
There is no written agreement between the parties to confirm the complainant was willing to accept the microwave installation with an incorrect/incomplete exhaust duct connection.
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:
• An estimated date of completion
• Information about the customer’s right to file a complaint with the registrar
• Contact information for the registrar
• A signature of the contractor
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: As specified in the contract, and confirmed by the respondent, this project included modifying electrical in the walls and in the ceiling.
This is permit required work that was performed without a permit being obtained.
REQUIRED CORRECTIVE ACTION:
The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections (related to the electrical work) 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.
Investigator’s Observations: The respondent acknowledged that “his guys” performed the electrical work.
The respondent has two contractor licenses:
• CR-61 Carpentry, Remodeling and Repairs
• B-3 General Remodeling and Repair Contractor
Both of these licenses require all work related to electrical to subcontracted to an appropriately licensed contractor.
REQUIRED CORRECTIVE ACTION: All corrective work related to electrical must be subcontracted to an appropriately licensed contractor.
All errors in original.
On October 4, 2021, Investigator Smith issued an Amended Written Directive extending the deadline date for compliance to October 8, 2021, as the permitting process required additional time.
On October 29, 2021, Investigator Smith conducted a compliance inspection. Investigator Smith’s Compliance Jobsite Inspection Notes state the following:
Compliance Jobsite Inspection General Notes: This Compliance Inspection was to evaluate the current conditions of items requiring corrective action as stated on the Directive. Those items are listed below.
Compliance Findings: The respondent has complied with the Directive.
As stated on Directive: The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections (related to the electrical) listed in this Directive.
Compliance Inspection Findings for this item: This has been corrected.
By email, the respondent submitted screenshots of the building official’s website showing the permit has been finaled.
As stated on Directive: Complaint Item 1: “Kitchen Backsplash – tiles lifted – looks uneven.”
Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.
There are still areas of lippage that exceed the acceptable tolerance of 1/32 inch.
As stated on Directive: Complaint Item 2: “2 floor tiles replaced – 1 is not level & did not use correct grout color”
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been corrected and is acceptable.
As stated on Directive: Complaint Item 3: “Grout stains left on new quartz countertops”
The color of the staining is consistent with the color of thinset and/or the grout.
Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been done, however; the current conditions do not meet ROC Workmanship Standards.
The countertops are stained around the outer perimeter of the countertops, in the areas of backsplash tiles.
As stated on Directive: Complaint Item 4: “finish next to cabinet base is oversized Improper gap near dishwasher”
Compliance Inspection Findings for this item: This has been corrected.
The complainant stated this has been corrected and is acceptable.
As stated on Directive: Complaint Item 5: “Electrical outlet removed – termination end point unknown.”
Compliance Inspection Findings for this item: This has NOT been corrected.
A receptacle has been added to the end of the cabinets, to the right of the sink.
This work was permitted and inspected by the local building official.
As stated on Directive: Complaint Item 6: “The kitchen post above the dishwasher has white spackle on it.”
Compliance Inspection Findings for this item: This is considered resolved.
The complainant stated that she advised the respondent to not perform this portion of work.
As stated on Directive: Complaint Item 7: “Stove is not level with the countertops.”
Compliance Inspection Findings for this item: This has been corrected.
The complainant acknowledged this has been corrected.
As stated on Directive: Complaint Item 8: “When microwave was moved up d/t new cabinets- contractor did not align the air vent in the wall with the microwave.”
Compliance Inspection Findings for this item: This has been corrected.
The complainant acknowledged this has been corrected.
As stated on Directive: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158
Compliance Inspection Findings for this item: This has been resolved.
September 26, 2021, the respondent submitted a copy of contract form that includes all required elements of a contract per A.R.S. § 32-1158.
All errors in original.
Investigator Smith forwarded the Complaint to the Registrar’s Legal Department. 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)(16), and A.R.S. § 32-1154(A)(22).
Investigator Smith testified consistently with the findings contained in his Written Directive and Compliance Jobsite Inspection Notes. Investigator Smith verified that Respondent obtained the required permit and performed some corrective work. However, Respondent did not comply with two of the Written Directive requirements, specifically pertaining to the backsplash lippage and the grout stains on the countertops. Investigator Smith further testified that Respondent contracted outside the scope of its license when it performed electrical work on the project as Respondent’s licensure does not allow for electrical work and Respondent should have subcontracted that work to a properly licensed electrical contractor. Regarding Respondent’s deficient contract documents, Investigator Smith testified that Respondent submitted to the Registrar a copy of a contract form that includes all of the required elements of a contract, and therefore, Respondent is now in compliance with the provisions of A.R.S. § 32-1158.
Complainant testified that all of the backsplash tiles at the electrical outlets were “lifted” and that even after Respondent performed repairs, areas of lippage remain. Complainant also testified that the grout stains on the countertops are still present.
Linda Nolin, Complainant’s friend, testified that there are approximately twenty backsplash tiles with lippage by the refrigerator and to the left of the sink that remain after Respondent performed corrective work, and that the grout stains on the countertop are still visible.
Levi Conrad, Respondent’s Chief Operating Officer, testified that the project was completed on June 18, 2021, and that he was unaware of any issues until Complainant filed the Complaint with the Registrar. Mr. Conrad acknowledged that the project was in need of corrective work. Mr. Conrad testified that due to supply issues, Respondent could not acquire all of the tile needed to replace the tiles in need of replacement. Mr. Conrad testified that Respondent went so far as to procure sample tiles from showrooms in order to obtain replacement tiles. Mr. Conrad testified that Respondent replaced all tiles that needed replacement and believed that this issue was resolved. Regarding the staining of the countertops, Mr. Conrad testified that Respondent did not supply the countertops and that upon completion of the project, there was no staining noted. Mr. Conrad asserted that Complainant had ten days from installation to notify Respondent of any issues, and she did not do so. Mr. Conrad testified that Respondent cleaned the countertops for Complainant and that the staining was no longer an issue.
Administrative notice is taken of Respondent’s prior License record on January 20, 2022. Such prior License record reflects that Respondent’s License No. 240872 was first issued on April 9, 2008, and is active. Such prior License record also reflects that there is only the instant open complaint, zero complaints resulting in discipline, and zero resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that by failing to obtain a permit for the project, Respondent departed from or disregarded a building code. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards and that Respondent failed to obtain the required permit for the project. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner and did not perform all work in accordance with any applicable building codes and professional industry standards, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b).
The evidence established that Respondent performed electrical work on the project and that such work is beyond the scope of Respondent’s license. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(16).
The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. 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. 240872 for a period of two (2) 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 (30) 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 forty (40) days from the date of that certification.
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-137160-45720000Done this day, January 21, 2022.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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