ALJDEC decisions subject to certification as final

2022A-00133-CHC-ROC · Registrar of Contractors · 2022-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Debbie Drury,

COMPLAINANT

James Ralph Tanner,

License Nos. ROC 109888

RESPONDENT

No. 2022A-00133-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 23, 2022

APPEARANCES: Complainant Debbie Drury appeared on her own behalf via Google Meet. Respondent James Ralph Tanner appeared on his own behalf via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

James Ralph Tanner (Respondent) is the holder of License No. 109888, issued by the Arizona Registrar of Contractors (Registrar).

On or about March 27, 2021, Debbie Drury (Complainant) agreed with Respondent to remodel two bathrooms in her home. The contract amount was for $5,500.00.

In January 4, 2022, the Registrar received a Complaint containing twenty-seven items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on January 26, 2022.

Investigator Smith then issued a written directive on or about January 28, 2022. The original compliance date was February 14, 2022. After a few extensions for the compliance deadline, a final amended written directive was issued to Respondent on February 28, 2022, 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 March 4, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Item 3 BC report 2021-02474 -Pony wall - this wall was not present previously and was built from scratch by Tanner. This wall is still not straight. Tanner Materials did tear this bath out again down to the studs but did not remove or adjust the pony wall. There is lippage on this wall. The metal trim is jagged and not mitered correctly causing a sharp rough area as you enter the shower.”

Investigator’s Observations: Verified.

West bathroom:

The surface of the pony wall at the shower is not straight or flat. The variation exceeds 1/4 inch in a 3 foot span.

The metal trim installed has sharp and rough cut ends exposed.

The metal trim in comparison to the surface of the tile has lippage that exceeds 1/32 inch.

Some areas the tile is higher than the trim, other areas the tile is lower than the trim.

The metal trim in comparison to the surface of the drywall has lippage that exceeds 1/32 inch.

Some areas the surface of the drywall is higher than the trim, other areas the surface of the drywall is lower than the trim. The contractor stated this wall needs to be made flat and also have tile installed. The contractor acknowledged performing the remaining required work will also require the metal trim to be removed and replaced with new.

These issues were part of BCP 2021-02474 Item 11.

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 2: “Item 4 BC report 2021-02474- There is lippage around the window in that bathroom.”

Investigator’s Observations: Verified.

West bathroom:

There is lippage around the window.

The metal trim in comparison to the surface of the tile has lippage that exceeds 1/32 inch.

Some areas the tile is higher than the trim, other areas the tile is lower than the trim.

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: “Item 12 BC report 2021-02474 This was not corrected. The bow still exists. Mr. Fallas told us that they “fixed” the wall by placing an additional piece of dry wall over their initial mistake. This was done without our knowledge or permission and caused us to lose 1 full inch in the bathroom. The new wall is still bowed between toilet and sink and the addition inch impairs a built-in tissue dispenser.”

Investigator’s Observations: Verified.

West Bathroom:

During the Investigation of BCP 2021-02474, the sink wall in this bath was identified as having a bow that did not meet Arizona Workmanship Standards.

The respondent acknowledged they installed a second layer of sheetrock over the entire wall.

The box in this wall still exists. The bow exceeds 1/2 inch in a four foot span. Arizona Workmanship Standards require walls to be straight and flat within 1/4 inch.

Adding the second layer of sheetrock to sink wall has brought the sheetrock closer to a recessed tissue holder on the adjoining wall.

Adding a second layer of sheetrock to the sink wall has decreased the size of the bathroom by approximately 1/2 inch.

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: “The ROC report also required a fix to the trim that ran up the wall. This was partially corrected but at the top where the ceiling and tile meet is crooked.”

Investigator’s Observations: Verified.

West Bathroom:

The surface of the tiles on the “wing wall” of the shower is not parallel to the surface of the adjoining walls surfaces.

These issues were part of BCP 2021-02474 Item 3.

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: “Item 13 BC report 2021-02474- Decorative tile is not flush with the common tile.

Lippage in several places. Lippage on the decorative tiles includes metal and glass which can cause injury when cleaning.”

Investigator’s Observations: Verified.

West Bathroom:

The surface of the decorative tiles have several areas of lippage that exceed the acceptable tolerance of 1/32 inch.

The surface of the decorative tiles is not flat. The waviness in the surface of the decorative tiles is up to 1/8 inch in less than a 12 inch span.

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: “Grout lines are inconsistent throughout”

As described by the complainant, this is specific to the decorative tiles in this shower.

Investigator’s Observations: Verified.

West Bathroom:

The width of the grout lines in the decorative tile vary from 3/32 inch to 3/8 inch.

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 7: “Item 15 BC report 2021-02474 Floor tiles at the end of the shower floor away from the drain are not level. Several tiles dip down into the grout”

Investigator’s Observations: Verified.

West Bathroom:

The surface of some of the floor tiles are not flat. Some are raised and some are sunk down. This condition is most noticeable around the perimeter of the shower and around the drain.

The shower drain is not center in the shower floor. The drain is approximately 3-1/8 inches away from the side wall on the left, and approximately 4-3/8 inches away from the side wall on the right.

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 9: “Item 18 BC report 2021-02474 Leftover grout or mortar still remains on utility door and on the sidewalk.”

Investigator’s Observations: Verified.

Near the west bathroom:

There is construction debris/residue on the exterior door, trim and concrete.

During the investigation of BCP 2021-02474 the contractor acknowledged responsibility for this and stated that it would be corrected.

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 10B: “Additional cut penny rounds and metal fragments have been found in the grass. Picture of first work area with no protection on the ground have been located”

This was described by the complainant to be specific to the decorative rock area at the west side of the house.

Investigator’s Observations: Verified.

There are tiles scraps/pieces on the ground near the west side of the house.

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 13: “Toilet paper holder has not been installed.”

Investigator’s Observations: Verified.

West Bathroom:

The respondent confirmed the pony wall needs to be corrected, completed, and the toilet paper holder still needs to be installed.

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 14: “Sink stopper is not working. Missing a part.”

Investigator’s Observations: Verified.

West Bathroom:

The drain stopper is not functional in this bathroom. The pop-up lever appears to be disconnected from the drain stopper.

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 20: “The stopper in the sinks Tanner lost during construction. They were replaced with pop-ups. At the time the plumber was told this was not acceptable”

Investigator’s Observations: Verified.

East Bathroom:

The respondent confirmed the pop-up level arms were removed, and the drain stoppers were replaced with push style drain stoppers.

The respondent acknowledged this was meant to be temporary and the correct drain stoppers and pop-up levers still need to be installed.

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 25: “Hector Lopes the drywall man worked as a contractor on this job. Tanner directed us to pay him $1350 directly, which we did. He has a business card but is not licensed. This can be documented.”

Investigator’s Observations: Verified.

During this inspection, the respondent confirmed that Hector Lopez is one of their subcontractors, and that Hector Lopez did perform work on this project as a subcontractor.

The respondent also stated that Hector Lopez is not one of their employees.

A search of the ROC database confirms that Hector Lopez is not a licensed contractor.

Governing Rule: A.R.S. § 32-1154(A)(9) Attempting to evade this chapter by:

• (a) Aiding or abetting a licensed or unlicensed person.

• (b) Acting or conspiring with a licensed or unlicensed person.

• (c) Allowing one's license to be used by a licensed or unlicensed person.

• (d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.

ADDITIONAL VIOLATIONS

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

Warning Letter: Elements of a Contract.

Investigator’s Observations:

• As stated in the complaint form, and confirmed by the respondent, there was no written contract for this project until after the first bathroom was started, and mostly completed.

• Two separate contract forms were produced after the first bathroom was started, and mostly completed.

• The contract documents are specified as being estimates.

• Based on a review of those contract documents, the respondent’s contracts are missing the following information:

o The respondent’s name

• The respondent’s registered business name is “James Ralph Tanner DBA Az Mex Contracting”

• The name listed on the contracts is James R. Tanner DBA Az Mex Contracting”.

o The date the parties entered into the contract

•The estimates are dated, however; the estimates are not signed by either party and therefore do not indicate when the contract was entered into.

o An estimated date of completion

o A description of work to be performed

• The estimates include a breakdown of pricing by trades, however; the estimates to dot describe what work is to be performed.

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

o 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.

o A signature of the property owner

o A signature of the contractor.

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 A.R.S. § 32-1158

Warning Letter: Aiding and Abetting.

Investigator’s Observations: During the jobsite inspection, the respondent confirmed that Hector Lopez is one of their subcontractors, and that Hector Lopez did perform work on this project as a subcontractor.

The respondent also stated that Hector Lopez is not one of their employees.

A search of the ROC database confirms that Hector Lopez is not a licensed contractor.

Governing Rule: A.R.S. § 32-1154(A)(9) Attempting to evade this chapter by:

• (a) Aiding or abetting a licensed or unlicensed person.

• (b) Acting or conspiring with a licensed or unlicensed person.

• (c) Allowing one's license to be used by a licensed or unlicensed person.

• (d) Acting as agent, partner, associate or otherwise of a licensed or unlicensed person.

(All errors contained in the original).

On March 14, 2022, Investigator Smith conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Smith noted:

. . .

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

As stated on Directive: Complaint Item 1: “Item 3 BC report 2021-02474 -Pony wall - this wall was not present previously and was built from scratch by Tanner. This wall is still not straight. Tanner Materials did tear this bath out again down to the studs but did not remove or adjust the pony wall. There is lippage on this wall. The metal trim is jagged and not mitered correctly causing a sharp rough area as you enter the shower.”

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.

Current conditions:

• The metal trim has sharp cut ends directly below the corners of the wall cap. One piece has a black mark on the surface of the metal. One piece is protruding past the edge of the wall cap more than 1/32 inch.

• There is lippage on the sides between the wall tile and the wall cap that exceeds 1/32 inch. Some areas the wall tiles is out further than the edge of the wall cap, other areas the wall cap is out further than the surface of the wall tiles.

• There is one chipped tile in the shower directly below the wall cap.

• The grout in the niche is cracking.

• The toilet paper holder is only partially grouted in.

...

As stated on Directive: Complaint Item 9: “Item 18 BC report 2021-02474 Leftover grout or mortar still remains on utility door and on the sidewalk.”

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

...

As stated on Directive: Complaint Item 13: “Toilet paper holder has not been installed.”

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 toilet paper is now installed; however, the toilet paper holder is only partially grouted in.

As stated on Directive: Complaint Item 14: “Sink stopper is not working. Missing a part.”

Compliance Inspection Findings for this item: This has NOT been corrected.

The drain stopper is missing the retention/retainer clip below the sink.

As stated on Directive: Complaint Item 20: “The stopper in the sinks Tanner lost during construction. They were replaced with pop-ups. At the time the plumber was told this was not acceptable”

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

As stated on Directive: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-

1158.

Compliance Findings for this item: This has NOT been corrected.

On 2/23/2022, the respondent submitted an email that read: “Please see attached Bid / Contracts with all required elements”

On 2/28/2022, an emailed reply was sent to the respondent stating: “The attachments to this email are in excel spreadsheet format. I am not able to open and appropriately view these attachments. Please resend these as pdf documents.”

As of today’s date, the respondent has not submitted a copy of a contract form that complies with the requirements of A.R.S. § 32-1158.

(All errors contained in the original).

On March 16, 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); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12); A.R.S. § 32-1154(A)(13); and A.R.S. § 32-1154(A)(22).

On or about March 23, 2022, Respondent filed an Answer with the Registrar.

On or about April 12, 2022, a Notice of Hearing was issued setting a hearing on May 23, 2022 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Smith testified that with the extensions given by Complainant to complete the directive requirements amounted to 45 days to complete the work, however, four items remained not completed.

As to the contract issue, Investigator Smith testified that a contract was not provided until the work had commenced. He also testified as to the deficiencies in the contract as pointed out in the directive. Investigator Smith testified that to date, Respondent had not provided an acceptable contract.

As to the aiding and abetting, Investigator Smith noted that Hector Lopez was not Respondent’s employee but a subcontractor. Further, Investigator Smith noted that he could not locate “Hector Lopez” as having a contractor’s license. Investigator Smith also testified that Respondent informed him that he hired Mr. Lopez to perform some work.

Complainant Debbie Drury testified on her behalf and called her husband Douglas Drury as witness and offered 23 exhibits into evidence.

Mrs. Drury testified that she had hired Respondent 11 years ago to remodel one bathroom and was happy with their work.

Mr. Drury testified that Respondent never fixed anything without being asked, and it took getting the Registrar involved to see movement on the repairs. Mr. Drury also testified that they gave three extensions to Respondent to complete the work.

Respondent testified on his own behalf and called Alvaro Fallas as a witness.

Respondent testified that he first learned about the complaint at the jobsite inspection. Mr. Tanner testified that it was hard to perform the work as Complainant would deny access, but that he did not know if she denied access during the directive period. Respondent also testified that he did not know who Hector Lopez was, but knew that Complainant hired him.

Respondent testified that his contract now complies with the statutory requirements.

In his closing arguments, Respondent acknowledged that his initial work did not meet standards, but that due to supply chain and COVID issues, it was impossible to give a fixed date for completion.

Alvaro Fallas testified generally that he made a valiant effort to satisfy Complainant, but due to her indecisiveness and vacation schedule, he was unable to work at her pace.

Mr. Fallas also testified that Complainant denied access to the plumber for him to finish the repairs for items 14 and 20. Mr. Fallas testified that Complainant wished to keep the faucets for the sinks, but because they were old, Mr. Fallas had to order the parts. Due to the delay in the supply chain, the parts did not arrive until after the directive expired on March 4, 2022. Mr. Fallas also testified that he offered replacement parts or a cash settlement to remedy the issue.

In addition, Mr. Fallas testified that he left some minor debris on the side of the property which he could have removed.

Mr. Fallas also testified that he brought Hector Lopez in to perform a small repair.

Administrative notice is taken of Respondent’s prior License record on June 7, 2022. Such prior License record reflects that Respondent’s License No. 109888 was first issued on October 30, 1995, 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 the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Further, Respondent did not dispute the same. 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. Fallas admitted that he hired Mr. Lopez to make a small repair. Pursuant to the testimony of Investigator Smith, Mr. Lopez was not licensed. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(9)(a).

The preponderance of the evidence established, that there was no written contract, initially. Further, when provided after the commencement of the project, the contract did not meet the minimum elements as described in Investigator Smith’s directive and compliance jobsite inspection notes. Finally, despite Respondent’s assertions that his future contracts meet the statutory requirements, there was no evidence presented at hearing that this was the case. Therefore, Respondent is violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established that Respondent failed to complete the corrective work following the Directive being issued. The testimony or Investigator Smith established that the pony wall was not fully repaired to workmanship standards; there was still grout on the utility door and on the sidewalk; the toilet paper holder had not been installed; and the missing parts for the sink had not been installed. 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. 109888 for a period of five days.

It is further ordered that Respondent present the Registrar with a current copy of its contract proving that it meets statutory requirements within 15 days of this order.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 20 days from the date of that certification.

-54864001

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-137160-45720000Done this day, June 7, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

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-137160-45720000By Miranda Alvarez

Legal Secretary