ALJDEC decisions subject to certification as final

2022A-02495-CHC-ROC · Registrar of Contractors · 2022-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Marie Tarsha,

COMPLAINANT

Stone Hand Construction, LLC

License No. ROC 329244,

RESPONDENT

No. 2022A-02495-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 5, 2022

APPEARANCES: Complainant Barbara Marie Tarsha appeared on her own behalf with her daughter, Michelle Tarsha. Aaron Garcia appeared on behalf of Respondent. Stone Hand Construction, LLC. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Stone Hand Construction, LLC (“Respondent”) is the holder of License No. 329244 issued by the Arizona Registrar of Contractors (“Registrar”). Aaron Garcia is Respondent’s sole Member and Qualifying Party.

On or about April 2, 2021, Barbara Marie Tarsha (“Complainant”) contracted with Respondent for the remodel of her home. The contract price was $43,000.00. Complainant paid Respondent $21,500.00.

On or about March 28, 2022, the Arizona Registrar of Contractors (“Registrar”) received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator John Smith. After a May 6, 2022 jobsite inspection, at which both parties were present, Investigator Smith issued a Written Directive to Respondent dated May 9, 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 May 27, 2022.

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

Complaint Item 1: “Tile throughout is uneven, grout hollow under tile, grout lines crumbling or too thick, cracked tiles from poor installation, grout residue on surface.”

Investigator’s Observations: Verified.

Tile and grout issues observed throughout the house:

• Poor, uneven, and inconsistent texture in the grout.

• Low areas in the grout.

• Areas of grout on the surface of the tiles.

• Voids in the grout.

• Cracking/chipping grout.

• Some tiles loose and moving when walked on.

• Several areas of tile lippage that exceeds 1/32 inch. (Grout line are 3/16 inch.)

• At least one cracked/broken tile in a bathroom.

Additionally, the tile by the rear exterior door::

• Uneven grout widths due to poor cuts.

• Chipped tile

• Gap between tile and threshold up to 3/4 inch wide

Complaint Item 2: “Supposed to be 5ton unit w/split unit. AC too small and no split”

Investigator’s Observations: Verified.

As stated in the contract, the respondent did install a 5 ton split system air conditioner.

• The respondent installed a 5 ton compressor / condensing unit on the roof and connected it to a pre-existing furnace / air handler inside the house. The system was not functioning properly during this inspection.

• The system would turn on and run by use of the thermostat; however, the system was not producing any cool air.

• The air coming out of the air diffusers was the same temperature as the air going into the return air grills.

ADDITIONAL VIOLATIONS

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

Warning Letter: Elements of a Contract.

Investigator’s Observations: The respondent’s contract is missing the following information:

• An estimated date of completion

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 3: “Guaranteed 2 year workmanship warranty I did not receive”

Investigator’s Observations: This statement by the complainant does not implicate a workmanship issue, or a violation of A.R.S. § 32-1154(A).

Complaint Item 4: “Terminated agreement without reasonable cause and left majority of services unfinished (I hired other companies to do work that was in contract)

Contract included removal of debris, they left entire house trashed (Video/photo evidence)”

Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A).

The respondent stated there was a mutual agreement between the parties to not complete work per contract.

The complainant confirmed in writing and verbally that she did hire others to complete work per contract.

All errors in original.

On June 17, 2022, Investigator Smith conducted a Compliance Inspection, at which both parties were present. Investigator Smith’s Compliance Jobsite General Notes indicate the following:

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

As stated on Directive: Complaint Item 1: “Tile throughout is uneven, grout hollow under tile, grout lines crumbling or too thick, cracked tiles from poor installation, grout residue on surface.”

Investigator’s Observations from initial inspection: Verified.

Tile and grout issues observed throughout the house:

• Poor, uneven, and inconsistent texture in the grout.

• Low areas in the grout.

• Areas of grout on the surface of the tiles.

• Voids in the grout.

• Cracking/chipping grout.

• Some tiles loose and moving when walked on.

• Several areas of tile lippage that exceeds 1/32 inch. (Grout line are 3/16 inch.)

• At least one cracked/broken tile in a bathroom.

Additionally, the tile by the rear exterior door::

• Uneven grout widths due to poor cuts.

• Chipped tile

• Gap between tile and threshold up to 3/4 inch wide

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

The respondent acknowledged no corrective work was performed to correct/resolve this complaint item.

The respondent acknowledged all tile issues are in the same condition as they were during the initial ROC jobsite inspection.

As stated on Directive: Complaint Item 2: “Supposed to be 5ton unit w/split unit. AC too small and no split”

Investigator’s Observations from initial inspection: Verified.

As stated in the contract, the respondent did install a 5 ton split system air conditioner.

• The respondent installed a 5 ton compressor / condensing unit on the roof and connected it to a pre-existing furnace / air handler inside the house.

The system was not functioning properly during this inspection.

• The system would turn on and run by use of the thermostat; however, the system was not producing any cool air.

• The air coming out of the air diffusers was the same temperature as the air going into the return air grills.

Compliance Inspection Findings for this item: This has been corrected.

Both parties acknowledged the respondent sent an A/C contractor to repair the unit, verbally stating the repair included adding refrigerant to the system.

The system is now cooling.

The complainant now has concerns the system is not adequately cooling the house, specifically the rooms on/towards the west side of the house.

As previously described, the respondent installed/connected a five ton compressor/condensing unit to an existing furnace/ air handler.

During this inspection, with the air conditioning running, air temperatures were taken at the filter, and at the air diffusers throughout the house.

The temperature at the filter was approximately 85 degrees.

The air temperature at the air diffuser nearest the air handler was 66 degrees.

These temperature readings indicate the air conditioner compressor/condenser unit is functioning properly.

Air temperatures at the air diffusers in the west bedrooms was approximately 75 degrees, and approximately 80 degrees at the air diffuser in the west bathroom.

These temperatures indicate a temperature and/or air flow loss in the duct work.

The respondent did not install or modify the duct work, or the air handler.

The temperature and/or air flow loss to the west rooms is not considered to be the responsibility of the respondent.

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

All errors in original.

Thereafter, Investigator Smith 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)(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)(12), specifically, A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Smith testified consistently with his findings contained in the Written Directive and the Compliance Jobsite General Notes. Investigator Smith referenced the photographs he took at the jobsite inspection that depict the deficiencies with Respondent’s work, specifically with the tile installation. Investigator Smith testified that Respondent failed to comply with the Written Directive and there was “nothing to confirm a denial of access.” Respondent had told Investigator Smith that Complainant had terminated the parties’ contract, however, the termination document that Respondent provided to Investigator Smith was not signed by either party. Investigator Smith testified that Complainant hired anther contractor to complete the project, however, Respondent remained responsible to correct Respondent’s deficient work that was not modified by another contractor.

Investigator Smith testified that during the jobsite inspection, Complainant asked him who would be responsible for moving the furniture, and Investigator Smith advised her that it was her responsibility to move the furniture in order for Respondent to perform the required corrective work. However, Respondent did not attempt to schedule a time with Complainant for Respondent to perform the corrective work to the tile, and it is Respondent’s responsibility to do so during the period of the Written Directive.

Regarding Respondent’s failure to comply with the minimum elements of a contract, Respondent provided a new contract document to the Registrar, however, Investigator Smith testified that the document is still non-compliant as the advisement that a homeowner has a right to file a complaint with the Registrar should be in bold print, and the new contract document does not contain bold print for this provision.

Complainant testified that Respondent did not contact her to schedule the corrective work to the tile. Complainant explained that Respondent went to the jobsite one time during the Written Directive period with the HVAC contractor, and did not address the issues with the tile. Complainant asked Respondent to provide her with “a few days’ notice” in order for her to arrange to have the furniture moved. Complainant testified that Respondent replied, “don’t worry, I’ll have my guys do it.” Complainant testified that at that time Respondent requested a one week extension of the Written Directive deadline, however, Complainant did not hear from Respondent until June 16, 2022, the day before the Compliance Inspection.

Complainant thereafter contacted the HVAC contractor to perform additional work to the unit and was informed that Respondent instructed the contractor “to do the bare minimum to get it cooling.”

Mr. Garcia testified regarding his communications with Complainant and attempts at resolving the issues prior to Complainant’s filing of the Complaint. The parties were unable to resolve their differences. Consequently, Complainant filed the instant Complaint.

Mr. Garcia testified that at the jobsite inspection, he took full responsibility for the deficiencies and was willing to perform the work, however the “only issue was the furniture,” as Investigator Smith advised Complainant at the jobsite inspection that it was not Respondent’s responsibility to move the furniture. Mr. Garcia testified that he contacted Complainant regarding the HVAC contractor performing the required repairs, and at that time, requested an extension of time because he was working with the HVAC contractor’s schedule. The required work to the HVAC was performed.

Mr. Garcia further testified that he contacted Complainant the week of June 13, 2022, because the Compliance Inspection was approaching. Mr. Garcia asserted that Complainant asked for “a couple of days to move the furniture.” Mr. Garcia told Complainant there was “no time because the [Compliance] Inspection was on June 17, 2022 (Complainant had mistakenly believed the Compliance Inspection was June 27, 2022). Mr. Garcia admittedly did not contact Complainant during the period of the Written Directive to schedule the performance of the corrective work to the tile. Mr. Garcia explained that he was working in Vail and “finishing up that work first.” Mr. Garcia admitted the tile deficiencies are not resolved.

Administrative notice is taken of Respondent’s prior License record on August 10, 2022. Such prior License record reflects that Respondent’s License No. 329244 was first issued on June 9, 2020, and is suspended for non-renewal. Such prior License record also reflects that there is only the instant open 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 of record failed to establish that Respondent departed from or disregarded a building code in a material respect, resulting in prejudice to Complainant. Investigator Smith’s Written Directive did not mention any permitting issues and did not reference a violation of A.R.S. § 32-1154(A)(2)(b).

The credible evidence established that Respondent’s work was not in conformity with the Registrar’s standards, was not performed in a professional and workmanlike manner, and was not in accordance with industry standards. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner or in accordance with 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’s contract document did not contain all of the statutorily required elements for a contract, even after revision, as the contract failed to contain in bold type the advisement that a property owner has the 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 uncontroverted evidence established that Respondent did not complete the corrective work following the Written Directive being issued and that no valid justification existed 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. 329244 for a period of five (5) 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 (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) 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.

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-137160-45720000Done this day, August 11, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary