ALJDEC - Licensing

2022A-10258-CHC-ROC · Registrar of Contractors · 2023-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen Jenkins,

COMPLAINANT

Arizona Bath Masters, LLC

License No. ROC 333099,

RESPONDENT

No. 2022A-10258-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 30, 2023

APPEARANCES: Complainant Karen Jenkins appeared on her own behalf. James Gooch and Scott Robertson appeared on behalf of Respondent Arizona Bath Masters, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Arizona Bath Masters, LLC (Respondent) is the holder of License No. 333099 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 8, 2022, Karen Jenkins (Complainant) entered into a contract with Respondent for a bathroom remodel, including moving the plumbing from above ground to under cement and to move the shower drain to the center. The total contract price was $13,779.00, and Complainant paid a deposit of $6,890.00.

On or about November 7, 2022, the 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 Lisa Melton. After a jobsite inspection, Investigator Melton 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 March 8, 2023.

If additional time is required due to permit/inspection process and or material delays, it must be requested prior to the expiration of this Directive (March 8, 2023). In order to consider the request, sufficient information to substantiate the need for the extension should be provided with the request.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: No permits were obtained and, according to Maricopa County Planning and Development, they were required.

Investigator’s Observation: Respondent has performed scope of work which includes, in part; removal of existing bath/shower and install of new shower and associated plumbing, including relocation of drain. Permit(s) are required for this work. Respondent should comply with all requirements of the building authority and provide copy of closed permit to this Investigator.

Governing Rule: A.R.S. §32-1154 (A) (2) (b), Departure from or disregard of: A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Following the issuance of the written directive, Respondent took no action to obtain a permit or complete the work. After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

On or about April 3, 2023, Investigator Smith conducted a compliance jobsite inspection. At the compliance jobsite inspection, Investigator Smith was notified that Respondent had submitted an application for a permit on March 31, 2023, after the deadline in the directive expired.

On or about April 4, 2023, Investigator Smith issued an amended written directive to Respondent that provided as follows:

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: No permits were obtained and, according to Maricopa County Planning and Development, they were required.

Investigator’s Observation: Respondent has performed scope of work which includes in part; removal of existing bath/shower and install of new shower and associated plumbing, including relocation of drain. Permit(s) are required for this work. Respondent should comply with all requirements of the building authority and provide copy of closed permit to this Investigator.

Observations at Compliance Inspection: Respondent appeared for inspection and provided what appeared to be the initial application for permit. Subsequent to inspection, the Complainant provided documentation showing that the permit was applied for on March 31, 2023. This Item was the only Item that was previously directed by the Registrar in a Written Directive issued on February 15, 2023. Respondent did not obtain or complete the permit during the original Directive period which expired on March 8, 2023.

Investigator’s Observation: The Respondent’s work is not complete. Work on site was stopped by Complainant prior to initial inspection due to concerns regarding no permitting. Respondent should complete project per original contract agreement, properly executed change orders, workmanship standards, permitting/inspection requirements, industry standards and manufacturers installation instructions.

. . . .

Compliance Item 3: Trim/molding was put on poorly and there are gaps in all the corners (especially in the corners inside the shower that will be regularly exposed to water). Especially egregious area in the back left-hand corner wall where the trim pieces do not even come close to meeting and are completely away from the wall panel, leaving a significant gap.

. . . .

Compliance Item 4: There are many places where the trim does not even touch the top of the wall panels and places in the corner where it does not meet. The corners should have been mitered and they were simply butted up...and do not meet properly and have been cut leaving them rough and extremely unprofessional looking and sharp/jagged.

. . . .

Compliance Item 6: Main grab bar in back of shower is not mounted to any studs as required by instructions from manufacturer, thus making it no longer safe or OSHA approved. It is also not ADA compliant. "

. . . .

Compliance Item 7: Grab bar flanges appear to be incorrectly installed or be defective units as the flanges have significant play instead of being "locked" in and the manufacturer confirms this is not correct.

. . . .

Compliance Item 8: I have no clue if they put silicone beneath the screws to stop water seepage or if they used marine grade 316 stainless steel screws as required in heavy water use areas.

. . . .

Compliance Item 11: Water pressure has been reduced by about 25% to what it was immediately before the install and needs to be corrected.

. . . .

Compliance Item 12: Tears and damaged areas on purple wallboard are concerning to me because the "purple" coating is what makes these moisture, mold, and mildew resistant. If that is broken or compromised, so is its effectiveness.

. . . .

Compliance Item 13: There are "gloppy" areas of caulk where the floor meets the buttress that holds the doors that shows a spot where there is no caulk and water could easily seep into that area.

. . . .

Compliance Item 14: There is an area at the base of the wall that abuts the master bedroom where he didn't even bother caulking where the tub wall ends just above the floor.

. . . .

Compliance Item 15: We are concerned about whether a 6.5" area above the shower wall (which are approximately 79-80" tall) is truly safe with only drywall mud and paint to resist infiltration by regular water exposure. If this is not code compliant or sufficient as a water barrier in an area where it will be exposed to water daily, then they need to correct it and put up an appropriate water barrier in the space above the shower walls.

. . . .

Compliance Item 16: I am concerned about whether they properly "patched" the foundation area (pretty large) that they tore up to move the plumbing. Compromised foundations are the beginning of big, expensive problems.

. . . .

Compliance Item 18: I believe the shower to not be sealed and protected properly.

. . . .

Compliance Item 20: Installer left a horizontal gap of approximately 2 - 3" across the center of the back wall between the purple wallboard panels. I questioned this and he said it would not be an issue as he would tape it, which he did.

. . . .

Compliance Item 24: I am owed two more shower shelves that the VP of Tyvarian sent to AZ Bath Masters to be installed at no charge.

. . . .

Compliance Item 26: They damaged the wall in our master bedroom when they cut completely through the wall while removing the old shower.

On or about April 24, 2023, following the expiration of the deadline in the amended written directive, Investigator Smith determined that the permit application was pending revised drawings.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

Investigator Smith testified as to her involvement in this matter. Investigator Smith noted that the scope of work in the contract required a permit.

Complainant testified she had asked Repsondent about a permit early in the process, but Respondent advised her it was not necessary. Complainant admitted that after the written directive was issued, she would not allow Respondent to perform any work on the project until the permit was obtained because she worried the work would have to be removed for inspection.

Mr. Robertson, Partner, acknowledged that a permit was required for Complainant’s project but Respondent did not obtain a permit prior to starting work on the project. Mr. Robertson stated that the written directive was “not a high priority.” Mr. Robertson asserted that Complainant was dragging the process out and continued to do so throughout.

Mr. Gooch, Partner and Qualifying Party, stated that he did not notice there was a deadline for compliance in the written directive. Mr. Gooch also admitted that he did not request an extension of the deadline because he did not see that notice in the written directive. Mr. Gooch alleged that there were a number of projects in Sun City that required permits, but were moving forward without permits having been obtained. Mr. Gooch declined to say that such a situation in Sun City excused Respondent’s failure to obtain a permit prior to starting work on Complainant’s project.

Administrative notice is taken of Respondent’s prior License record on July 20, 2023. Such prior License record reflects that Respondent’s License No. 333099 was first issued on April 21, 2021, and is active. Such prior License record also reflects that there were no other open complaints 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. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(8).

The evidence established that Respondent did not obtain a permit prior to beginning the project and therefore, did not complete the project in accordance with the applicable building code. Therefore, Complainant established that Respondent departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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. 333099 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.

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, July 20, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Arizona Bath Masters, LLC

[email redacted]

Lisa Melton

[email redacted]

Karen Jenkins

[email redacted]

By: OAH Staff