ALJDEC - Licensing

2022A-08544-CHC-ROC · Registrar of Contractors · 2023-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert J Houseknecht,

COMPLAINANT

v.

La Casabella LLC,

License No. ROC 318003,

RESPONDENT

No. 2022A-08544-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 24, 2023

APPEARANCES: Complainant Robert J. Houseknecht appeared on his own behalf. Antonio Giannandrea appeared via Google Mett on behalf of Respondent La Casabella LLC. Registrar of Contractors Investigator David Fagerburg appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

La Casabella LLC. (Respondent) is the holder of License No. 318003 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 3, 2022, Robert J. Houseknecht (Complainant) agreed to have Respondent remodel his master bathroom and guest bathroom. The total cost was to be $19,600.00

On or about September 23, 2022, the Registrar received a Complaint containing twenty four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on November 3, 2022.

Investigator Fagerburg then issued a written directive on or about November 4, 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 Friday December 9, 2022.

...

Investigator Notes:

1: In reviewing the written contract submitted I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract.

2: At this jobsite investigation the respondent acknowledged there were no permits issued for the 2 bathroom remodels violating ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code.

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: Sliding barn door support board not flush with drywall.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 2: Trowel marks on texture wall.

Investigator’s Observation: Verified. The respondent acknowledged the trowel marks on the textured wall and will make repairs.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 3: Electrical box in current position, unusable.

Investigator’s Observation: Verified. Prior to performing any corrective work the respondent is to obtain any and all required permits from the local building authority, pass all required inspections and correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 4: Electrical plug not replaced.

Investigator’s Observation: Verified. The respondent is to complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 5: Paint left on tile.

Investigator’s Observation: Verified. The respondent acknowledged there is paint on the bathroom tile and is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 6: No touch up paint by ceiling.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 7: No collapsible bench installed.

Investigator’s Observation: Verified. The respondent is to install the collapsible bench and complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 8: Safety bars not installed.

Investigator’s Observation: Verified. The respondent is to complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 9: Shower tile wall not level.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 10: Tile pattern not kept.

Investigator’s Observation: Verified. Prior to performing any corrective work the respondent is to obtain any and all required permits from the local building authority, pass all required inspections and correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 11: No ceiling fan cover installed.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 12: Top of vanity not glued down.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 13: Towel bars and hooks not installed.

Investigator’s Observation: Verified. The respondent is to complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 14: Broken mirror

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 15: Shower head not installed.

Investigator’s Observation: Verified. Prior to performing any corrective work and completing the project the respondent must obtain any and all required permits from the local building authority and pass all required inspections and complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 17: Shower floor not level/unusable

Investigator’s Observation: Verified. Prior to performing any corrective work the respondent is to obtain any and all required permits from the local building authority, pass all required inspections and correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (2) (B) Departure from or disregard of a building code, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 18: Wrong grout used – blurring into other grout.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 19: Metal frame in shower not installed right – wrong color

Investigator’s Observation: Verified. The respondent is to correct the metal frame trim in the guest bathroom shower niches with gaps at the miter cuts by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 20: No permanent bench installed

Investigator’s Observation: Verified. The respondent is to install the permanent bench and complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 22: No clean up after second demo.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 24: No replacement of electrical plug/switch

Investigator’s Observation: Verified. In reviewing the contract submitted by the complainant I am able to verify the respondent proposed to install light fixtures, outlets and switches to code. The respondent is to complete the project per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original).

On December 15, 2022, 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about July 9, 2021, Respondent e-mailed an Answer to the Registrar, stating that Complainant waited 10 days to contact him back regarding scheduling a time to complete the Directive.

On or about January 19, 2023, a Notice of Hearing was issued setting a hearing on February 24, 2023 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Fagerburg testified that no corrective work had been started until just before the end of the Directive, but Complainant agreed to allow Respondent to have additional time to make the corrections.

Further, Investigator Fagerburg testified despite the extra time, Respondent failed to fully complete the Directive requirements. Investigator Fagerburg testified that he conducted a prehearing inspection on February 14, 2023 and found that Directive items 1, 3, 4, 5, 6, 11, 12, 13, and 24 were corrected. As to Directive item 2, while the trowel marks were completed, the orange peel texture used was not uniform, thus not full completed. Investigator Fagerburg testified that the remaining Directive items were incomplete.

In addition, Investigator Fagerburg testified that there were no permits pulled for the plumbing and electrical work which were required by the City of Tempe.

Finally, as to the citation for the contract, Investigator Fagerburg testified that items 1, 4 and 9 were not in the contract as required by A.R.S. § 32-1158(A). Further, according to the Registrar’s records, an updated contract had not been supplied.

Complainant testified on his own behalf. He testified that the project started in April 4, 2022, and was still not completed. Complainant testified that there was a lack of communication throughout the project, and at one point did not hear from Respondent for 5 weeks. Also, Complainant testified that once the Directive was issued, he did not hear from Respondent until a day before the Directive expired.

Complainant testified that he was unsure as to how the tile pattern became out of sync, and that he did not see how any of the tile was salvageable.

Antonio Giannandrea testified on behalf of Respondent, and acknowledged that Complainant had some good points, and the timing did not go as well as it should have.

Mr. Giannandrea testified that most of the items were completed by Daniella, his employee. He also disagreed with the orange peel texture not being completed as it was hard to duplicate. Mr. Giannandrea also testified that he believed all of the workmanship was good.

Further, Mr. Giannandrea testified that he did not believe permits were required for the plumbing and electric because he was moving existing pipes and wires and not adding the same. However, he testified that he would defer to the Registrar’s decision as to that issue.

Finally, Mr. Giannandrea testified that he agreed the tile work was an issue and would like an opportunity to coordinate and correct the same, as he was not given an opportunity to do the same. Mr. Giannandrea also closed his arguments with stating that he did not believe discipline was warranted as he never had a complaint in his previous 25 years in business.

Administrative notice was taken of Respondent’s prior License record on March 9, 2023. Such prior License record reflected that Respondent’s License No. 318003 was first issued on February 6, 2018, and reflected that there were three open complaints, one of which was the present complaint. Further, Respondent’s license had been suspended for seven days as a result of case 2022-01332.

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, and Respondent admitted, that there were no permits obtained, in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There also was essentially no refuting the same from Respondent, but for the orange peel texture. 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 established, that the invoices presented did not meet the minimum elements of a contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Respondent did not dispute that all items but for 1, 2, 3, 4, 5, 6, 11, 12, 13, and 24 were not corrected. Further, Complainant was more than generous in allowing Respondent time to complete the corrective work once the Directive expired. 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 ten 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, 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, March 9, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

La Casabella LLC

[email redacted]

Robert J Houseknecht

[email redacted]

By: OAH Staff