ALJDEC decisions subject to certification as final

2021A-05043-CHC-ROC · Registrar of Contractors · 2022-04-18

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeannie S. Paparella and Stevie Cowie,

COMPLAINANTS,

MS FABRICATIONS, LLC

DBA: TGA General Contracting

License No. ROC 331986,

RESPONDENT.

No. 2021A-05043-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 28, 2022

APPEARANCES: Steven Cowie appeared on behalf of himself. Michael Seeberger appeared on behalf of Respondent MS FABRICATIONS, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about August 11, 2021, Complainants Jeannie S. Paparella and Stevie Cowie entered into a residential remodeling contract with Respondent MS FABRICATIONS, LLC (MF).

2. On or about August 24, 2021, MF started work.

3. On or about September 25, 2021, MF stopped work.

4. On or about October 6, 2021, the Arizona Registrar of Contractors (ROC) received a complaint from Ms. Paparella alleging poor workmanship on the part of MF.

5. On October 19, 2021, ROC Investigator Daniel Edwards conducted a job-site inspection.

6. On October 27, 2021, the ROC issued a Directive to MF that provided, in relevant part, 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 November 12, 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 reasons1, 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.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 5 - I believe we were charged an outrageous amount for the baseboards installation, which the contractor did himself. The work is subpar. Some corners are out of place and one corner is a completely different style.

Investigator’s Observation: The charges for the baseboard materials/installation are a financial dispute and not a workmanship issue I am able to order corrective action for.

Regarding the allegation of poor installation: One area pointed out to me was where a baseboard met a door frame; a small gap exists between the door trim and baseboard. There is a gap less than 1/4" between the baseboards and door trim. Due to the type baseboards installed, there is insufficient space to add a small mitered baseboard to this area. Respondent is not responsible for adding a mitered corner between the door trim and adjacent baseboard and this work appears to meet standards of workmanship. Regarding the remaining areas: It was observed that at least one baseboard corner did not match any of the baseboards throughout the home. Additionally, some corner moldings marked by complainant were observed to not adequately fit where installed and are in need of adjustment to be flush with the surrounding baseboards. At the master bathroom shower there is a small gap between the baseboard and the shower enclosure. All joints should be properly fitted, filled and painted. Respondent shall correct these baseboard issues 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: 2 - There are a few places where the flooring is loose or squeaks - in addition to the bathrooms. It has been six weeks and the contractor still has not addressed this issue. He simply told us that his subcontractor was busy and it might be a while.

Investigator’s Observation: The flooring throughout the home is Aquaguard 12mm wood laminate flooring. Per both parties, this flooring material is installed over the pre-existing ceramic tile in the home with a cork underlayment.

At inspection it was observed that in the areas marked by the complainants in the master bedroom, bathroom and hallways did exhibit some slight movement when stepped on it appears that the laminate flooring is not making full contact with the substrate. Additionally, there is a gap between two planks adjacent the master bathroom shower which a credit card was able to be slid through. The manufacturer of the flooring has specified that installation over tile is an acceptable method of installation for this product. Manufacturer's instructions call for use of self-leveling compound to be used to fill grout lines, allowing tile to be level within 3/16" in a 10' span. Respondent shall correct the flooring issues to conform with manufacturer's specifications and address the movement and gaps 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. On January 6, 2022, Investigator Edwards conducted a compliance job-site inspection. Investigator Edwards concluded that MF had not corrected the items listed in the Directive. Investigator Edwards’s notes regarding his findings provided, in relevant part, as follows:

• Compliance item no. 5 – It was observed that respondent has performed some of the necessary work – the mismatched corner piece has been replaced and some adjustments have been made to baseboard corners throughout the home. However, the gap between the baseboard trim and shower enclosure still remains and at least one remaining corner appears poorly done with paint/caulking smeared over the surrounding drywall and a poor fit.

• Compliance item no. 2 – It appears respondent has not performed any work related to this compliance item as all areas exhibiting significant movement still remain. Additionally, the gap between planks at the master bathroom still remains as well.

8. On January 19, 2022, the ROC issued a Citation against MF’s license for alleged violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).

9. MF filed a timely answer to the Citation.

10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

11. A hearing was held on March 28, 2022.

12. At hearing, Mr. Cowie testified on behalf of himself. Mr. Seeberger testified on behalf of MF. Investigator Edwards testified regarding his investigation of the complaint.

13. Mr. Cowie explained that MF performed poor work when it remodeled his home. Mr. Cowie agreed that he asked that the new floor be installed over his existing floor. Mr. Cowie pointed out areas to MF that he believed were an issue. Mr. Cowie stated that he never refused “prep work.” Mr. Cowie believed that the areas that he pointed out to MF would be properly remedied.

14. Mr. Seeberger stated that he informed the Mr. Cowie and

Ms. Paparella that MF install the new wood floor over their existing floor. However,

Mr. Seeberger stated that it was understood that new wood floor would replicate the floor below. Mr. Seeberger stated that Complainants believed that their floor did not have defects and accepted the risk that any existing defects in their floor would be seen in the new floor. Mr. Seeberger stated that Mr. Cowie did not pay for floor preparation. MF did not obtain a written waiver from Mr. Cowie or Ms. Paparella regarding the risk for substandard work.

15. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 18, 2022, the ROC first issued a license to MS FABRICATIONS, LLC on January 19, 2021, and is active. Such prior License record also shows that there is only one open complaint against MF. MF’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

This matter lies within the ROC’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.

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).

4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

5. As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The evidence presented at hearing shows that Respondent was aware that the new floor might contain defects caused by defects that may have existed in the original floor. However, if a contractor has doubts about the condition of a jobsite, the contractor cannot escape liability under the Registrar’s statutes unless the contractor has obtained a written waiver signed by the property owner. Respondent did not submit a written warranty disclaimer signed by Complainants.

6. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108. If Respondent could repair Complainants’ home without complying with the ROC’s workmanship standards, it should not have undertaken the job without a written waiver signed by Complainants.

7. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

8. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s Directive without valid justification, which is a 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. ROC 331986 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. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, April 18, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary