ALJDEC decisions subject to certification as final

2022A-01332-CHC-ROC · Registrar of Contractors · 2022-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cindy Rukasin,

COMPLAINANT

La Casabella, LLC,

License No. ROC 318003,

RESPONDENT

No. 2022A-01332-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 6, 2022

APPEARANCES: Andrew Wenker, Esq. represented Complainant Cindy Rukasin, who was present. Antonio Giannandrea appeared on behalf of Respondent La Casabella, LLC. Arizona Registrar of Contractors Investigator Jason Simpson appeared as a witness. Daniel Quijano appeared as a witness for Complainant.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

La Casabella, LLC (“Respondent”) is the holder of License No. 318003 issued by the Arizona Registrar of Contractors (“Registrar”). Antonio Giannandrea is Respondent’s Qualifying Party and Member.

On or about September 21, 2021, Cindy Rukasin (“Complainant”) contracted with Respondent for Respondent to perform remodeling work at Complainant’s home. The contract price was $41,890.00. The parties stipulated at hearing that Complainant paid Respondent in full.

On or about February 16, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to Respondent’s work on the project.

The Registrar assigned the Complaint to Investigator Jason Simpson. After an April 25, 2022 Jobsite Inspection, Investigator Simpson issued a May 9, 2022 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 May 27, 2022.

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

ALL permits (if required) must be obtained before the start of work.

Complaint Item 1: “Bathroom 1

Tile missing/incomplete

Trim incomplete

Cabinet unfinished

Stopper for sink does not work

Light not installed

Door not stained or sealed

Towel bars not installed

Toilet paper holder not installed

Water leaking from base of shower to bathroom floor Drywall not complete, taped, textured, painted.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 2: “Mirror not cut correctly”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. I observed mirror not cut properly in the area next to cabinet. Large gap between cabinet and edge of mirror.

Complaint Item 3: “Outlet in cabinet at wrong height.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should make repair or replace for proper functional use.

Complaint Item 5: “Mater bedroom

Trim incomplete

Trim does not match

No carpet

Drywall incomplete not tape,texture,paint

Closets (master and hallway)

Shelves unfinished

Closet rods are not secure

Closet rod to close to back wall

Drywall incomplete

Closet doors not secured, stained and sealed

Missing mirror on closet door”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 7: “Guest rooms

Carpet and padding not installed

No closet door hardware

Painting unfinished

Trim unfinished, missing, not secure, not measured correctly Closet doors not stained and sealed

Trim not secure

Drywall not patched correctly”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 8: “Front door not installed

Garage entry door not installed”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 9: “Front room

Carpet and padding not installed

Outlet not installed

Trim not installed”

Investigator’s Observation: This allegation is verified as the responsibility

of the respondent.

Complaint Item 10: “Hallway

Carpet and padding not installed

Trim not secure

Drywall not mud/tape/texture and painted”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Complaint Item 11: “Bathroom 2

Trim incomplete

Light not installed

Door not stained or sealed

Towel bars not installed

Toilet paper holder not installed

Shower door does not stay closed

Painting incomplete

Sink stopper not working

Tub faucet not secure

Tile incomplete

Mirror not cut correctly”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 4: “Vanity not correct”

Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Complaint Item 6: “Tv not installed correctly, Shelves behind all TVs not installed”

Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.

Complaint Item 12: “Toilet is not proper fit”

Investigator’s Observation: This allegation is NOT verified.

All errors in original.

Investigator Simpson’s Jobsite Inspection Notes address several Warning Letters that were issued to Respondent as follows:

In additional to the allegations in the complaint, the following Warning Letters were issued:

Warning Letter: Elements of a Contract.

Investigator’s Observation: 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

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

Warning Letter: Display of License.

REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance with the provisions of A.R.S. § 32-1124

Warning Letter: Aiding and Abetting.

All errors in original.

After the issuance of the Written Directive and the expiration of the time period in which to perform corrective work, Investigator Simpson contacted Complainant and was informed that Respondent had not completed the required corrective work. Investigator Simpson also contacted Mr. Giannandrea and was told that Respondent “did not feel safe” returning to the project because Respondent “had been bullied” by Complainant. Investigator Simpson asked Mr. Giannandrea if he had any communication with law enforcement regarding the allegation, to which Mr. Giannandrea replied that he had not, and further, Mr. Giannandrea could not provide any specific information to Investigator Simpson regarding Complainant’s alleged “bullying” of Respondent. Mr. Giannandrea simply stated that he “didn’t like how Complainant was directing his employees and was ‘aggressive’.” Investigator Simpson found no evidence of poor treatment of Respondent by Complainant.

On June 13, 2022, Investigator Simpson conducted a Compliance Inspection and found non-compliance by Respondent. Respondent’s workers had returned to the jobsite during the period of the Written Directive, however, only performed minimal work and did not remedy or complete any of the deficient work. Investigator Simpson’s Compliance Jobsite Inspection Notes indicate the following:

Compliance Jobsite Inspection General Notes: Respondent did not complete any of the work per the written directive.

This Compliance Inspection was only to evaluate the current conditions of items requiring corrective work as stated on the Directive. Those items are listed below.

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: “Bathroom 1

Tile missing/incomplete

Trim incomplete

Cabinet unfinished

Stopper for sink does not work

Light not installed

Door not stained or sealed

Towel bars not installed

Toilet paper holder not installed

Water leaking from base of shower to bathroom floor Drywall not complete, taped, textured, painted.”

Investigator’s Observation from initial inspection: Incomplete work

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.

As stated on Directive: “Mirror not cut correctly”

Investigator’s Observation from initial inspection: Work not completed.

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

As stated on Directive: “Outlet in cabinet at wrong height.”

Investigator’s Observation from initial inspection: Work not completed

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

As stated on Directive: “Mater bedroom

Trim incomplete

Trim does not match

No carpet

Drywall incomplete not tape,texture,paint

Closets (master and hallway)

Shelves unfinished

Closet rods are not secure

Closet rod to close to back wall

Drywall incomplete

Closet doors not secured, stained and sealed

Missing mirror on closet door”

Investigator’s Observation from initial inspection: Work not completed.

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

As stated on Directive: “ “Guest rooms

Carpet and padding not installed

No closet door hardware

Painting unfinished

Trim unfinished, missing, not secure, not measured correctly Closet doors not stained and sealed

Trim not secure

Drywall not patched correctly”

Investigator’s Observation from initial inspection: Work not completed

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

As stated on Directive: “Front door not installed

Garage entry door not installed”

Investigator’s Observation from initial inspection: Work not completed

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

As stated on Directive: Front room

Carpet and padding not installed

Outlet not installed

Trim not installed

Investigator’s Observation from initial inspection: Work not completed

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

As stated on Directive: Hallway

Carpet and padding not installed

Trim not secure

Drywall not mud/tape/texture and painted”

Investigator’s Observation from initial inspection: Work not completed

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

As stated on Directive: Bathroom 2

Trim incomplete

Light not installed

Door not stained or sealed

Towel bars not installed

Toilet paper holder not installed Shower door does not stay closed Painting incomplete

Sink stopper not working

Tub faucet not secure

Tile incomplete

Mirror not cut correctly

Investigator’s Observation from initial inspection: Work not completed.

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

In additional to the allegations in the complaint; the following Warning Letters were issued:

Warning Letter: Elements of a Contract.

Warning Letter: Display of License.

Warning Letter: Aiding and Abetting.

All errors in original.

Investigator Simpson testified that Complainant had informed him that Respondent was utilizing unlicensed contractors on the project. As a result, Investigator Simpson asked Respondent to provide information regarding whether Respondent was utilizing employees or licensed subcontractors for the project. Notwithstanding the opportunity to respond, Respondent failed to provide any information in this regard to Investigator Simpson.

Thereafter, Investigator Simpson forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(8), A.R.S. § 32-1154(A)(9)(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Simpson testified that he did not conduct a prehearing inspection due to the fact that no work had been performed by Respondent after the Compliance Inspection.

Investigator Simpson testified consistently with his findings contained in the Written Directive and Compliance Jobsite Inspection Notes and with the above-delineated Findings of Fact.

Complainant testified about her contract with Respondent and the payments she made to Respondent. Complainant further testified regarding the state of the project, what remains incomplete, including but not limited to doors, mirrors, carpet, painting, trim, and fixtures, and the minimal work performed during the period of the Written Directive. Complainant referenced photographs taken on June 6, 2022, that depict the state of the project.

Complainant testified that at the time of the contract, Mr. Giannandrea told her the project would take four to six weeks to complete, but at a maximum, it would take eight weeks. Complainant testified that she repeatedly requested a completion date from Respondent. On January 18, 2022, Complainant’s counsel sent a letter to Respondent requesting a completion date. On February 1 and 7, 2022, Complainant’s counsel emailed Respondent to prompt a response to the January 18, 2022 request for a completion date. On May 26, 2022, the day prior to the deadline in the Written Directive, Complainant’s counsel emailed Respondent in an attempt to have Respondent complete the corrective work and for Respondent to provide a date by which it would do so. Respondent did not respond.

Complainant testified that she became concerned regarding the licensure status of Respondent’s subcontractors because they approached her for payment after Respondent’s checks to them had not cleared due to Non-Sufficient Funds (“NSF”), and those subcontractors incurred additional fees due to those NSF checks. Complainant requested that her counsel prepare a letter for her to provide to the subcontractors informing them that she had no obligation to pay them and that such obligation rested with Respondent.

Complainant testified that she specifically asked one of Respondent’s workers who he worked for, and the individual stated that he worked for “himself.” Complainant asked for the worker’s license number and the worker stated that he was a “handyman.” Complainant testified that she thereafter asked him to stop working on the project until Respondent was present. Complainant testified that Respondent did not provide the license numbers of any of the subcontractors utilized for the project. Complainant testified that she researched the individual who indicated he was a handyman and found that he was unlicensed.

Regarding Respondent’s allegations of “bullying,” Complainant credibly testified that she “never yelled or threatened anyone.”

Daniel Quijano was called as a witness by Complainant. Mr. Quijano testified that he was hired by Respondent to work on the project. Mr. Quijano is not an employee of Respondent and is not a licensed contractor. Mr. Quijano testified that he received payments from an individual who worked for Respondent and that two of the checks he received were returned as NSF, however, Respondent paid him shortly thereafter. Mr. Quijano testified that Complainant is “a good person” and would provide beverages to the workers.

Mr. Giannandrea testified that the project is 85% to 90% complete, that the Written Directive contains what he considers “punch list” items, and that they can be completed “in a short period of time.” Mr. Giannandrea asserted that Respondent experienced labor and material shortages and that Respondent’s relationship with Complainant “went completely south.” Mr. Giannandrea contended that Complainant “made it impossible for the trades” because she was “mad at him and took it out on the trades.” Mr. Giannandrea testified that he has never been spoken to in the way in which Complainant spoke to him, and “so he pulled crews and couldn’t get them to go back.” Mr. Giannandrea asserted that Respondent was unable to complete the project because of Complainant’s behavior. Mr. Giannandrea testified that he was “hoping to get assistance from the Registrar.” Mr. Giannandrea testified that he does not disagree with Investigator Simpson’s Written Directive, however, asserted that Respondent was not given the opportunity to complete the project.

Mr. Giannandrea acknowledged that there was no written deadline in the contract. Mr. Giannandrea further acknowledged that there is no documentation concerning Complainant’s behavior, and that this allegation was not mentioned by Respondent until the Written Directive was issued.

Administrative notice is taken of Respondent’s prior License record on October 12, 2022. Such prior License record reflects that Respondent’s License No. 318003 was first issued on February 6, 2018, and is active. Such prior License record also reflects that there are two open complaints, including the instant Complaint, zero resolved/settled complaints, and no discipline 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 Respondent failed to complete the project for the price stated in the contract notwithstanding that Complainant paid the contract price in full. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(8).

The evidence established that Respondent utilized unlicensed individuals on this project as the individuals were not employees of Respondent and were not licensed contractors. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(9)(a).

The evidence established that Respondent’s license number was not printed on the contract provided to Complainant. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B).

The evidence established that Respondent’s contract did not contain Respondent’s license number, an estimated date of completion, and the advisement concerning a homeowner’s right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive and that there was no valid justification for such failure. 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. 318003 for a period of seven (7) days.

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 (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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). On or before thirty (30) days after the effective date of the final order, Respondent shall demonstrate to the Registrar that it is in compliance with the requirements of A.R.S. § 32-1124(B). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) and that it is in compliance with A.R.S. § 32-1124(B), within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

-54864001

001

-137160-45720000Done this day, October 20, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

La Casabella, LLC

23 E. Pierce St.

Tempe, AZ 85281

[email redacted]

Cindy Rukasin

2506 E. Glade Ave.

Mesa, AZ 85204

[email redacted]

Andrew J. Wenker, Esq.

James N. Hanson, Esq.

LANG & KLAIN, PC

6730 N. Scottsdale Road, Suite 101

Scottsdale, Az. 85253

[email redacted]

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary