ALJDEC - Licensing

2023A-00439-CHC-ROC · Registrar of Contractors · 2023-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marilyn Schultz ,

COMPLAINANT

Mountain Sky Building and Design LLC

License No. ROC 269279,

RESPONDENT

No. 2023A-00439-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 31, 2023

APPEARANCES: Complainant, Marilyn Schultz, appeared on her own behalf. Tony Lamb appeared on behalf of Respondent Mountain Sky Building and Design LLC. Investigator John Smith appeared on behalf of the Arizona Registrar of Contractors. All appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

_____________________________________________________________________

FINDINGS OF FACT

Mountain Sky Building and Design LLC (Respondent) is the holder of License No. 269279 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 17, 2022, Marilyn Schultz (Complainant) entered into a contract with Respondent to, among other things, “fabricate (2) 3CM slabs of ‘Denali’ Quartz” and “’Miter’ the selected edge” of said quartz.

On or about January 12, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

Complaint Item 2: “The left side of quartz apron doesn't meet wall and is open to water intrusion. The left side of quartz was not fabricated to meet corner.”

Investigator’s Observations: Verified.

There is a gap between the quartz slab and the wall at the left side of the tub.

The gap at the top measures 11/16 inch.

The gap at the bottom measures 5/8 inch.

Joint width between the slab and the wall surface should not exceed 1/8 inch.

The respondent’s written response to the complaint includes: “...our company did not do the framing around the tub, or the sub top for the tub.”

However, the scope of work per contract includes:

• “Leveling the currently installed (wood) sheet

The respondent’s representative on site was not able to explain what “correct corner” meant.

Additionally, the framing and drywall were installed prior to, and during, the respondent installing the quartz.

Quoted from Substantive Policy Statement 2017.01

Acceptance of the Surface

• "As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner's or general contractor's attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer."

Source: Deebv. Check s Epoxy , No. 2014A-3258 (ALJ Decision at 11:11- 19).

Governing Rule: ARIZ. REV. STAT. § 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 3: “The waterfall seams where apron meets the top are pitted and appear unfinished in places.”

Investigator’s Observations: Verified.

There are visible voids and blemishes in and near the seam between the deck and the apron.

(All errors contained in original.)

Following the issuance of the Written Directive, Respondent was given until February 24, 2023, to take corrective action. On February 27, 2023, Complainant granted Respondent additional time to complete the corrective action; Investigator Smith drafted an Amended Written Directive which required Respondent to complete all corrective action by March 17, 2023. On March 15, 2023, Respondent contacted Investigator Smith claimed Complainant refused to allow Respondent to perform the corrective action. Respondent claimed he met with Complainant and informed her Respondent intended to demo the original quartz, replace it with new quartz, but a plumber was necessary for the demo, and therefore needed to return at a later date with a plumber. Respondent then claimed Complainant stated she had another company that would do the quartz work and Respondent was asked not to return. On March 21, 2023, Investigator Smith forwarded Respondent’s email to Complainant to verify Respondent’s claims. Complainant replied to Investigator Smith’s email stating at the March 15, 2023, meeting Complainant did not ask Respondent to leave, rather she requested a written work order of the scope of the corrective work to be performed. Respondent never supplied a work order to Complainant. Sometime after the March 17, 2023, corrective action deadline Complainant informed Respondent they would no longer be granted access to the jobsite.

On March 27, 2023, Investigator Smith conducted a compliance inspection. Some corrective work had occurred to the drywall and frame which Respondent did not perform; regardless, the corner of the tub was neither plumb nor straight. An unacceptably large gap remained between the tub and the wall. On March 27, 2023, Investigator Smith forwarded the complaint to the Registrar’s Legal Department.

On April 13, 2023, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) ; and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Smith testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite General Notes.

Complainant concurred with Investigator Smith’s testimony.

Mr. Lamb testified there was a disagreement regarding the placement of the quartz slab due to the fact that the adjoin wall had a bullnose corner. Respondent testified Complainant did not want a new slab of quartz to be cut and therefore the only solution available to Respondent was to reframe the wall to align with the existing slab. Respondent testified he planned to send his framer in an attempt to correct the issue, however, they were never given the opportunity as Complainant severed the relationship.

Administrative notice was taken of Respondent’s License No. 269279 on June 20, 2023, was first issued on November 19, 2010, and is active. Respondent’s License record also reflected that there are no additional open complaints and no resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The corner of the tub was neither plumb nor straight and an unacceptably large gap remained between the tub and the wall. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

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 Ariz. Rev. Stat. § 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. 269279 for a period of 1 day (24 hours).

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, June 21, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

John Smith

[email redacted]

Mountain Sky Building and Design LLC

[email redacted]

Marilyn Schultz

[email redacted]

By: OAH Staff