ALJDEC decisions subject to certification as final

2022A-05868-CHC-ROC · Registrar of Contractors · 2023-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Josh Forsythe,

COMPLAINANT

v.

Paul Bryant Rubens

License No. ROC 303278,

RESPONDENT

No. 2022A-05868-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2022

APPEARANCES: Complainant Josh Forsythe appeared via Google Meet on his own behalf. Respondent Paul Bryant Rubens appeared via Google Meet on his own behalf. Registrar of Contractors Investigator Jason Simpson appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Paul Bryant Rubens (Respondent) is the holder of License No. 303278 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 19, 2022, Josh Forsythe (Complainant) agreed to have Respondent perform several remodel projects in his home. The total price per the contract was to be $104,392.00.

On or about July 25, 2022, the Registrar received a Complaint containing seventeen items against Respondent from Complainant alleging abandonment and poor work with respect to project.

The Registrar assigned the complaint to Investigator Jason Simpson. The jobsite inspection was performed on September 13, 2022.

Investigator Simpson then issued a written directive on September 28, 2022, 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 October 14, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Countertop fabrication extremely poor: not plumb, mismeasured, sinktop not cut appropriately, seams misaligned; edges laminated and not mitered; edges misaligned; gaps around edges; countertop not sealed around sink; stains; veining change of direction 90° midcounter, etc”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “Folding window installed improperly: full air gaps at edges and around hardware; header not sealed; window too recessed (stucco/styrofoam exposed).”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 3: “Stucco repair not completed.”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 5: “2x Barnwood accent walls incomplete”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 6: “Exposed edges on bathroom shower niche (tried painting them, which he said was an industry secret); Back wall of bathroom shower not plumb; Shower hardware not plumb.”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 7: “Touch ups in 2x bathrooms incomplete”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 8: “ADA accessible bench not installed; Shower rod installed 8” too far out;

Tiles not finished in 2x bathrooms ; Schluter wavy and uneven in 1x bath”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 9: “Shutters not plumb on 1x window”

Investigator’s Observation: This allegation is NOT verified.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 10: “Light fixture removed and wires left exposed”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 16: “Swapped cabinets not plumb or level”

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

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original).

On November 2, 2022, 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); A.R.S. § 32-1154(A)(8); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about November 17, 2022, Respondent timely filed an Answer to the Registrar.

On or about December 1, 2022, a Notice of Hearing was issued setting a hearing on January 6, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Simpson testified as to the Registrar’s involvement and the above timeline.

Investigator Simpson testified that Respondent failed provide a valid contract to Complainant, and based upon his license, he was only allowed to charge for work which was $5,000.00 or less.

In addition, Investigator Simpson testified that Respondent failed to appear at the Jobsite Inspection. Further, there was no Compliance Jobsite Inspection because Complainant informed Investigator Simpson that there had been no contact with Respondent since June 29, 2022.

Finally, Investigator Simpson testified that while Respondent could not perform the corrective work due to the license issue, he could have entered into a financial settlement to resolve the matter.

Complainant testified on his own behalf and submitted 30 exhibits into evidence. He testified that he saw Respondent’s work from a friend and decided to hire him for his projects.

Complainant testified that there was a gross error in the kitchen as the countertops were incorrectly measures, and all pieced together, and there were damages to the cabinets when the countertops were installed. Also, Complainant believed that the window was not properly installed. Complainant testified that overall, there was a lot of work to still be done.

In addition, Complainant testified that on June 29, 2022, Respondent walked off the job, yet also required Complainant to pay more money.

Respondent testified that Complainant kept changing a lot of the concepts with the projects like the window. As to the countertops, he stated that there were spots which were pieced together because the slab was not long enough, so he tried to match it as closely as possible.

In addition, Respondent testified that some of the Directive items were not workmanship issues, rather they were not finished.

Respondent admitted that there was no contact since the end of June because Complainant told him his services were no longer needed. Because of this he did not appear at the jobsite inspection and also did not offer a financial resolution to Complainant.

Finally, Respondent testified that he believed that some of the complaints were frivolous and required a professional in the field to make an assessment, and that it was not fair that he would not perform the corrective work due to being outside of the scope of his license.

Administrative notice was taken of Respondent’s prior License record on January 23, 2023. Such prior License record reflected that Respondent’s License No. 303278 was first issued on February 16, 2016, and reflected 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 abandoned the job in violation of A.R.S. § 32-1154(A)(1), and violated A.R.S. § 32-1154(A)(8) as he never returned to the jobsite after June 29, 2022, to complete the project for the price in the contract.

In addition, the preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The tribunal disagrees with Respondent’s assertion that the work was not reviewed by a professional to make an assessment of workmanship as that was Investigator Simpson’s role with the Registrar. In addition, Respondent offered no expert of his own to counter Investigator Simpson’s findings. 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 also 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). Although he could not physically perform the work, there was no evidence presented that he made a reasonable attempt to offer a financial settlement to resolve the issue.

Further, the preponderance of the evidence established that there was no a valid or proper contract in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158. The document in Complainant’s Exhibit 1 does not meet statutory requirements.

Finally, the preponderance of the evidence and Respondent admitted that he knowingly contracted beyond the scope of his license by charging more than $5,000.00 for the project. Therefore, Respondent was in violation of A.R.S. § 32-1154(A)(16).

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. 303278 for a period of twenty (20) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that if Respondent fails to provide a copy of his updated contract containing the proper statutory requirement to the Registrar 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 a copy of his new contract template.

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 30 days from 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, January 23, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Josh Forsythe

3146 E Kingbird Ct

Gilbert, AZ 85297

[email redacted]

Paul Bryant Rubens

509 W. Dundy St

San Tan Valley, AZ 85143

[email redacted]

By: OAH Staff

-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