ALJDEC decisions subject to certification as final
2022A-00569-CHC-ROC · Registrar of Contractors · 2022-06-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Susan Giuntini Walker,
COMPLAINANT
v.
Sun City Remodelers LLC
License No. ROC 324971,
RESPONDENT
No. 2022A-00569-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 10, 2022
APPEARANCES: Susan Giuntini Walker on her own behalf; Jeff Piurek for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On May 6, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above captioned matter for hearing on June 10, 2022 at the Office of Administrative Hearings.
Through its Notice of Hearing, ROC alleges that Respondent Sun City Remodelers LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent holds license No. 324971 issued by ROC. Jeff Piurek, Respondent’s sole member appeared and testified for Respondent.
Complainant Susan Giuntini Walker appeared and testified on her own behalf.
ROC investigator Chris Allison also testified.
Complainant and Respondent entered a series of contracts calling for Respondent to perform remodeling work at two bathrooms in her home.
In or about January 2022 Complainant filed with ROC a complaint against Respondent alleging abandonment and poor work on Respondent’s part. Complainant’s complaint shows that the contract price was $17,180.83 and that she had paid Respondent $11,760.
ROC investigator Mr. Allison conducted a jobsite inspection on February 24, 2022.
On March 10, 2022, ROC issued to Respondent a Directive and also an Amended Directive that superseded the original Directive.
ROC’s Amended Directive provided in part:
*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 4th, 2022 .
***
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Grab bars x 4 not installed per ADA compliance
Investigator’s Observation: The grab bars in the guest bathroom, seemed to be working. They didn't feel loose or have any play in them.
The Grab bars in the Master bath had come loose from the wall. There wasn't anything behind where they were mounted to make sure they were properly secured. ADA states, "The accessory should be free from any sharp or abrasive elements, must not rotate, and should sustain at least 250 pounds of force." This will need to be fixed.
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 - Chipped tiles MBR from grab bar installation
Investigator’s Observation: The chips in the tile caused by the failure of the grab bars need to be fixed.
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 - MBR grout cracking between pebble floor and walls
Investigator’s Observation: There is a minor superficial crack in the drying of the grout. This issues should be fixed as to not allow any cracking.
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 - MBR back wall of shower not plumb
Investigator’s Observation: The back wall of the master shower was taken down to the studs. The actual difference between the wall and ceiling is .84 of an inch out. This does not meet standards.
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 - MBR shower curb not pitched correctly
Investigator’s Observation: The slope of the curb is not negatively pitched.
However, it appears that water is getting out of the shower under the glass door. This will need to be fixed.
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.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 5 - MBR pebble shower floor ponding and divots in grout Investigator’s Observation: The pebble shower floor was installed properly, I didn't note any lippage or excessive divoting in the floor.
Compliance Item: 7 - Shower head pipes not secured to studs- both bathrooms
Investigator’s Observation: The fixtures are properly installed.
Compliance Item: 8 - New bathtub has multiple chips / scratches
Investigator’s Observation: The guest bathroom tub has a medical shower seat being used in it. I am unable to determine if this was caused by installation.
Compliance Item: 9 - Tile floors with multiple chips and inadequate grouting
Investigator’s Observation: There are chips noted on the tile, in almost the same locations in each tile. The homeowner supplied the tile for the job. It appears this is a manufacture issue and not an installation issue.
Compliance Item: 10 - Wood trim not completed both BRs
Investigator’s Observation: As the project isn't completed, this should be completed per contract.
Compliance Item: 11 - Paint not completed both BRs
Investigator’s Observation: The project isn't completed, therefore the ROC can't rule on incomplete work. This should be finished per contract.
Compliance Item: 12 - Toilet installations x 2 - history of water leaking from toilets since they were installed. - misalignment of toilet discharge with back wall discharge - due to toilets being mounted on top of tile, not the cement floor.
Investigator’s Observation: Installing a toilet on tile is a common practice in the industry. I did not see any signs of leaking at the time of the inspection.
Also the homeowner stated the master bathroom toilet couldn't handle being used due to a slow flush. At this time I'm unable to determine what the cause of this issue is. A plumber should inspect the pipe and see if there is an issue.
Compliance Item: 13 - Bathtub drain - pooling water while running the faucet to warm the water for a shower.
Investigator’s Observation: Pooling while running water isn't an issue. The amount of water filling could just exceed the pace at which the drain functions. The bathtub drains after water is being used. This should also be checked by a plumber to see if there is an issue.
On April 1, 2022, Respondent contacted Complainant to schedule the work ROC ordered Respondent to complete. Complainant responded to the effect that, with advanced scheduling, anytime would work. It is not clear why, but no work was scheduled until April 8, 2022, at which time the parties agreed that Respondent would conduct the work on April 12, 2022. Later on April 8, 2022, Complainant cancelled the April 12th appointment because ROC’s deadline for compliance had passed.
ROC issued to Respondent a Citation dated April 13, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Regarding Compliance Item 3, Mr. Allison testified that because Respondent had removed the existing wall down to the studs, workmanship standard 3 under Carpentry and Framing required the wall to be plumb within one-quarter inch when the studs were re-covered. Mr. Allison explained that there were several ways such a deficiency could be corrected and that it would not have been necessary to replace the studs.
Respondent acknowledges that Compliance Items 1, 2, 4, and 6 are workmanship deficiencies that require correction. Regarding Compliance Item 3, wall out of plumb, Respondent’s position is that because this was a remodeling job, not new construction, this is not a workmanship deficiency.
Mr. Piurek provided credible testimony that Respondent was ready, willing and able to make all corrections that ROC ordered it to make, including correcting Compliance Item 3.
Complainant testified to the effect that she had no confidence that Respondent would make any required corrections in conformity with the applicable industry standards. She also expressed her frustration that Respondent had failed to communicate with her prior to her filing her complaint.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides that:
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
*****
3. Violation of any rule adopted by the registrar.
*****
22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
The scope of the hearing is limited to issues that have been properly noticed. See Ariz. Rev. Stat. § 41-1092.07(F)(6).
Respondent acknowledges that with respect to Compliance Items 1, 2, 4 and 6, its work was deficient and did not meet the applicable standards. Regarding Compliance Item 3, when the standard for framing is read in conjunction with the standard for tile walls, there is sufficient evidence to conclude that the out-of-plumb wall is a workmanship violation. Consequently, the preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A) as set out in ROC’s Amended Directive, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
With the exception of the ADA grab-bar, the deficient work appears to be fairly minor and Respondent stands ready, willing and able to repair that work, which is a factor in mitigation.
Considering the facts and circumstances of this matter, it is appropriate for Respondent’s license to be suspended for one day and for Respondent to be assessed a civil penalty of $100.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Sun City Remodelers LLC’s license No. 324971 for one day and that the Registrar impose against Respondent a civil penalty of $100.
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.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, June 10, 2022.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000