ALJDEC decisions subject to certification as final
2022A-02705-CHC-ROC · Registrar of Contractors · 2022-09-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Susana Araceli Perez,
COMPLAINANT
v.
Superior Renovations LLC,
License No. ROC 324000,
RESPONDENT
No. 2022A-02705-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 29, 2022
APPEARANCES: Complainant Susana Araceli Perez appeared on her own behalf. Bruno Brunelle, Owner and Qualifying Party, appeared on behalf of Respondent Superior Renovations LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Superior Renovations LLC (Respondent) is the holder of License No. 324000 issued by the Arizona Registrar of Contractors (Registrar).
On or about May 11, 2021, Susana Araceli Perez (Complainant) signed a contract with Respondent for a renovation project for a total contract price of $10,668.79. By the terms of the contract, $5,334.40 was due upon agreement, $2,675.00 was due after the fifth day of work, and $2,659.39 was due upon completion of the project. No written change orders were executed during this project.
On or about April 4, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.
The Registrar assigned the complaint to Investigator Greg Johndrow. After a jobsite inspection on May 13, 2022, Investigator Johndrow issued a 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 June 13, 2022.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 3: “Tiles are chipping in shower and grout has holes - doesn't appear to have been sealed properly -”
Investigator’s Observations: Verified. The complainant pointed out and showed several areas within the shower where tile have chips and grout is missing.
. . . .
Complaint Item 4: “the grout is gathered in the corners and looks incomplete at bottom of shower wall w/ soap dish”
Investigator’s Observations: Verified. The complainant pointed out and showed the inside corners of the shower that have excessive amounts of grout.
. . . .
Complaint Item 7: “Wall behind vanity looks incomplete.”
Investigator’s Observations: Verified. The complainant pointed out and showed the missing base tile between the cabinetry in the master bedroom.
. . . .
Complaint Item 8: “Electrical outlets have holes/gaps - not solid and sparks”
Investigator’s Observations: Verified. The complainant pointed out and showed the holes and gaps located around the electrical cover plates in the master bathroom and bedroom. The metal cover plates used in the master bedroom are loose and do not hold the outlet safely in place.
. . . .
Complaint Item 9: “The Saltillo tile grouting is a mess and have tile chipping and holes.”
Investigator’s Observations: Verified. The complainant pointed out and showed the grouting of the Saltillo tile that has been left smeared on the tile edges and covering up the detail edge of the tile. Chipped tiles and holes in the grout were also identified by the complainant. The conditions were pointed out in the master bedroom.
. . . .
Complaint Item 10: “Wall texturing has big gaps, the paint job poorly done, still see white, uneven wall & ceiling lines”
Investigator’s Observations: Verified. The complainant pointed out the conditions described in the Living room, hallway, master bedroom and master bath.
. . . .
Complaint Item 11: “Bullnose base boards incomplete”
Investigator’s Observations: Verified. The Complainant pointed out and showed the conditions in the master bedroom on either side of the closet.
. . . .
Complaint Item 12: “The closet conversion wall is uneven at the base board has a gap left bottom hallway”
Investigator’s Observations: Verified. The complainant pointed out and showed a gap on the top of the baseboard located in the master closet wall on the backside of the hallway.
. . . .
Complaint Item 13: “The arch in bedroom is uneven”
Investigator’s Observations: Verified. The complainant pointed out and showed the flat spots in the radius of the archway in the master bedroom.
. . . .
Complaint Item 14: “Took down popcorn ceiling, never completed paint job in one room and didn't clean the walls”
Investigator’s Observations: Verified. The complainant pointed out and showed two rooms where the described work was started and not completed.
. . . .
Complaint Item 15: “The entrance(door frame) to the bathroom is uneven”
Investigator’s Observations: Verified. The complainant pointed out and showed, the header, above the opening from the master bedroom to the master bath, is twisted and not level.
. . . .
Complaint Item 16: “Kitchen and living room baseboards are placed badly, incorrectly - look awful”
Investigator’s Observations: Verified. The complainant pointed out and showed the poorly and unsightly installed baseboards in the kitchen and living room on either side of the arch.
. . . .
Complaint Item 17: “The arch between kitchen and living room is uneven - tile is not placed how I asked”
Investigator’s Observations: Verified. The complainant pointed out and showed the flat spots in the radius of the archway. The tile installed is unsightly with excessively large grout joints and tile pieces that protrude beyond the face of the decorative tiles.
. . . .
Complaint Item 18: “removed paint on walls in kitchen and did not repaint/fix”
Investigator’s Observations: Verified. The complainant pointed out and showed the inside corners surrounding arch in the kitchen have not been repaired or repainted.
. . . .
Complaint Item 19: “created a mess in the front yard w/ grout and did not clean up”
Investigator’s Observations: Verified. The complainant pointed out and showed debris that was not cleaned up in the front yard of the residence.
. . . .
Complaint Item 21: “The Shower Handheld is coming out of the wall”
Addendum added at site inspection.
Investigator’s Observations: Verified. The complainant pointed out and showed the handheld shower is loose on the wall where it is located in the shower of the master bathroom.
Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Johndrow was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) or (B); and A.R.S. § 32-1154(A)(22).
Investigator Johndrow testified that most of the items identified in the written directive went to the workmanship issue of the project, but Complaint Item 14, involving the popcorn ceiling, went to the charge of abandonment. Investigator Johndrow acknowledged he heard from Respondent on the date of the deadline in the written directive.
Complainant testified that she made all the required payments under the terms of the contract. Complainant stated that a further payment was not required before the project was completed. Complainant asserted that after the written directive was issued, Respondent did not contact Complainant until June 13, 2022, the deadline in the written directive, stating that it needed to come do some work on the project.
Mr. Brunelle testified that Complainant provided verbal agreement to do additional change orders. Specifically, Mr. Brunelle stated that Complainant asked for Saltillo tile to be installed, which resulted in a price change of $8,000.00. Mr. Brunelle admitted that none of the change orders were in writing as required by the contract. Mr. Brunelle testified that on June 13, 2022, he contacted Complainant regarding the written directive and believed that Respondent would get a payment towards the draw, but Complainant did not say anything about further payment. Mr. Brunelle denied abandoning the contract.
Administrative notice is taken of Respondent’s prior License record on September 19, 2022. Such prior License record reflects that Respondent’s License No. 324000 was first issued on April 2, 2019, and was active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
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 evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid with respect to the popcorn ceiling. Accordingly, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued and did not make any contact with Complainant until the date of the deadline in the written directive. 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).
Lack of further payments did not justify Respondent’s failure to perform the work in the first place given the terms of the contract or to perform the corrective work. Notably, none of the purported change orders were in writing, and therefore, the terms of such agreements, if they existed, cannot be determined.
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. 324000 for a period of three 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 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)(5), 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 40 days from the date of that certification.
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-137160-45720000Done this day, September 19, 2022.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary