ALJDEC decisions subject to certification as final

2022A-07300-CHC-ROC · Registrar of Contractors · 2023-02-06

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maria Scholnick

COMPLAINANT,

C&D Holdings 2, LLC

DBA: The Patch Boys of Greater Tucson

License No. ROC 336776

RESPONDENT.

No. 2022A-07300-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2023 with the record held open until January 17, 2023.

APPEARANCES: Complainant Maria Scholnick (Ms. Scholnick) appeared on behalf of herself. Neal Eckel, Esq. appeared on behalf of Respondent C&D Holdings 2, LLC DBA: The Patch Boys of Greater Tucson (The Patch Boys).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. According to the public website of the Arizona Registrar of Contractors (Registrar) on February 6, 2023, the Registrar issued License No. ROC 336776

for Specialty Dual CR-10 Drywall to Respondent.

2. On or about May 23, 2022, The Patch Boys entered into a contract with Jack and Maria Scholnick, wherein The Patch Boys would repair (including cabinetry, the installation of countertops, and carpentry work), the Scholnicks’ kitchen for the amount of $14,957.85. Jack and Maria Scholnick paid The Patch Boys $11,141.39 for the construction.

3. The Patch Boys did not provide Jack Scholnick nor Maria Scholnick with a written contract that advised them of their right to file a complaint with the Registrar against The Patch Boys for an alleged violation of A.R.S. section 32-1154(A) within the time allowed by. A.R.S. section 32-1162(A).

4. On or about May 18, 2022, The Patch Boys started work.

5. On or about June 10, 2022, The Patch Boys stopped work.

6. On or about August 5, 2022, the Registrar received a complaint from

Ms. Scholnick alleging abandonment, poor work, and negligence on the part of The Patch Boys.

7. On September 23, 2022, Registrar Investigator Gregory Johndrow conducted a job-site inspection. David Scott, an employee of The Path Boys, was present at the job-site inspection. Mr. Scott stated more than once that he “quit the job.” See the Registrar’s Administrative Record, pg. 1, and Investigator Johndrow’s testimony on the Hearing Audio Record.

8. On or about October 3, 2022, the Registrar issued a Directive to The Patch Boys that provided, in relevant part, 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 19, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “The patch boys carpenter did very poor kitchen cabinets work. He used poor quality wood, wood is cracking, the cabinet painting job is poor, kitchen cabinets are not leveled, cabinets are shorter than others. Drywall in cabinets is exposed. There is water leak coming from a temporary sink they installed that has been neglected to fix it as they quit the job, they wouldn’t come back.”

Investigator’s Observations: Verified. The respondent used construction grade plywood to construct cabinet boxes. This material is not equivalent to the existing cabinet construction. The construction grade plywood is rough, contains cracks, and splits in the material. The paint applied to the new cabinet material is poor quality and workmanship. The cabinets were not installed level and have a difference in height. Respondent confirms. The new cabinet boxes were constructed with no backs, leaving exposed drywall. This is not equivalent to the existing cabinetry. The sink conditions are unverified. The sink had been removed by the complainant prior to this inspection.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “The cabinet toe kicks were not repaired well. The strip of wood is falling off and lose. Some of the toe kicks are not there. Job was done bad.”

Investigator’s Observations: Verified. The toe-kicks have been installed poorly. The pantry cabinet toe-kick is severally bowed and the toe-kick installed on the corner cabinetry is loose and excessively recessed back from the existing tile floor not matching with existing conditions.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 4: “We gave David Scott 2,6640.10 toward counter tops. The receipt is on his name, but since he quit the job after he told us he would complete – repair the cabinet job, we don’t trust his word and we hope we won’t have more issues with the delivering of the countertop.”

Investigator’s Observations: Verified. The countertops have not been delivered or installed.

Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications... A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9- 108(a) A contractor shall perform work in a professional and workmanlike manner. A.R.S. § 32-1154(A)(8): Failure in a material respect by the licensee to complete a construction project...

Complaint Item 5: “Counter tops were suppose to have been delivered in July 2022, however David Scott hesitation and reluctance to complete the job put us behind until September 2022 as the countertop crew came in July 2022 to install them, but they left because the cabinets were not ready. And now that David Scott quit as August 15, 2022, by the time the cabinets get done and repair by other contractor that we need to find, we will have to wait longer time after September to install the countertops.”

Investigator’s Observations: Verified. The countertops have not been delivered or installed.

Complaint Item 7: “A wall lamp shade was not set back on the wall. They told us they would hang it, but they didn’t do it.” Investigator’s Observations: Verified. The shade for the hallway light fixture was not reinstalled.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 8: “The Patch Boys left paint (white) on a door. They said they were going to remove but they didn’t. They went around a electric switch cover avoiding to paint the surface under the switch cover, this also a detail thay told us they would correct but they didn’t do it.”

Investigator’s Observations: Verified. The pantry door and jamb have drywall and paint which was not removed. Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 10: “A wood panel as part of the kitchen cabinetry that was suppose to be repaired was made very poorly, wood was not cut right, had the wrong stain, the wood chipped, and the stain touched the freshly painted wall.” Investigator’s Observations: Verified. The wood panel installed on the left side of the refrigerator has been poorly installed and does not match the existing cabinetry color or finish. Additionally, stain from the panel was applied to the drywall surface.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 12: “David Scott quit the job using an excuse that he can’t satisfy us no matter what he says, do, and explain, however he never did what he said he was going to do, as he quit without completing the job. ”

Investigator’s Observations: Verified. The Respondent (David Scott) stated several times during the inspection, he has quit the project.

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications... A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9- 108(a) A contractor shall perform work in a professional and workmanlike manner. A.R.S. § 32-1154(A)(8): Failure in a material respect by the licensee to complete a construction project...

Complaint Item 15: “Before The patch Boys began working with the cabinets, The company's president David Scott told us that his carpenter (Scott) who also worked as a plumber in our case, has 40 years of experience. The job that his carpenter/plumber did with our cabinets and plumbing was the worst. An 8 or 12 -year-old child could have done it better. Scott, put nails under the cabinets to attach a 2x4 piece of wood to hold the cabinet standing without stability, along with two additional pieces of wood to both sides of the cabinet. He did the same with all the cabinets.”

Investigator’s Observations: Verified. The base for the cabinetry was poorly constructed and provides inadequate support.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified: Warning Letter: Elements of a Contract.

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Warning Letter: Working beyond scope of License.

Governing Rule: A.R.S. § 32-1154(A)(16): Knowingly contracting beyond the scope of the license or licenses of the licensee.

9. The Patch Boys failed to comply with the Directive by the due date.

10. On or about November 29, 2022, the Registrar issued a Citation to The Patch Boys alleging that The Patch Boys violated Arizona Revised Statutes (A.R.S.) section 32-1154(A)(3) (specifically, Arizona Administrative Code (A.A.C.) R4-9-108(A); A.R.S. sections 32- 1154(A)(1),(2)(a),(8), (12), (16), (22); Ariz. Rev. Stat. section 32-1158.

11. The Patch Boys filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on January 3, 2023.

14. At hearing, Mr. Scholnick testified on behalf of himself. Mrs. Scholnick testified on behalf of herself. Investigator Johndrow testified consistently with his job-site inspection notes and the issuance of the Directive. Dave Scott testified on behalf of The Patch Boys.

15. Mr. and Mrs. Scholnick testified to the effect that The Patch Boys performed poor work and abandoned the project.

16. Investigator Johndrow testified consistently with his job-site inspection notes and the issuance of the Directive. Investigator Johndrow explained that The Patch Boys performed work outside of the scope of its license. Investigator Johndrow explained The Patch Boys could not perform most of the work listed in the Directive because The Patch Boys did not hold a license to perform the work. However, Investigator Johndrow explained that The Patch Boys could have corrective complaint items 7 and 8 under its Specialty Dual CR-10 Drywall license.

17. Mr. Scott did not dispute that The Patch Boys performed work outside the scope of its license. Mr. Scott explained that The Patch Boys offered Mrs. Mizzell a refund check in the amount of $2,787.10 because The Patch Boys was not licensed to perform work listed in the Directive. However, Mrs. Mizzell did not accept the payment.

18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 6, 2023, The Patch Boys’s license was first issued on February 24, 2022 and is active. Such prior License record also shows that there is only one open complaint against The Patch Boys and that the Registrar has not imposed discipline against The Patch Boys’s license. The Patch Boys’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 shows that Respondent abandoned the

project, which is a violation of A.R.S. section 32-1154(A)(1).

The preponderance of the evidence shows that Respondent did not install

the countertops as required under the plans, which is a violation of A.R.S. section 32-1154(A)(2)(a).

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent failed to

complete the construction project for the price provided in the contract, which is a violation of A.R.S. section 32-1154(A)(8).

7. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. section 32-1154(A), which is a violation of A.R.S. section 32-1154(A)(12) and A.R.S. section 32-1158.

8. The preponderance of the evidence shows that The Patch Boys knowingly contracted beyond the scope of its Specialty Dual CR-10 Drywall license, which is a violation of A.R.S. section 32-1154(A)(16).

9. The evidence presented at hearing shows that Respondent offered Complainant a refund in the amount of $2,787.10 to cover the amounts that Complainant paid for that were included in the Directive, because Respondent could not repair most of the items listed in the Directive. However, the weight of the evidence shows that Respondent could have repaired complaint items 8 and 9. However, Respondent did not do so. Additionally, there was no evidence that the amount offered to Complainant would have been sufficient to pay another contractor to correct the deficient work. Therefore, the Administrative Law Judge concludes that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of A.R.S. section 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 License No. 336776 issued to C&D Holdings 2, LLC

DBA: The Patch Boys of Greater, for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. section 32-1154(E).

It is further recommended that the Registrar require Respondent to submit to the Registrar a contract that that includes the minimum elements of contract as required under A.R.S. section 32-1158(A).

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. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that if Respondent fails to submit to the Registrar a contract that that includes the minimum elements of contract as required under A.R.S. section 32-1158(A), 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.

Done this day, February 6, 2023.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Maria Scholnick

1230 Calle Rafael

Rio Rico, AZ 85648

[email redacted]

Neal Eckel, Esq.

Farhang & Medcoff

100 South Church Avenue, Suite 100

Tucson, AZ 85701

[email redacted]

Gregory Johndrow

[email redacted]

Jeffrey Fleetham

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]