ALJDEC - Licensing
2023A-00987-CHC-ROC · Registrar of Contractors · 2023-06-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marlou Sponhower,
COMPLAINANT,
v.
Pink Restoration, LLC
License No. ROC 317853,
RESPONDENT.
No. 2023A-00987-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 5, 2023
APPEARANCES: Complainant Marlou Sponhower appeared on her own behalf with her fiancé, John Hopkins. Arizona Registrar of Contractors Investigator Michael Springer appeared as a witness. Respondent Pink Restoration, LLC did not appear.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Pink Restoration, LLC (“Respondent”) is the holder of License Number 317853 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about October 7, 2022, Marlou Sponhower (“Complainant”) and her fiancé, John Hopkins, contracted with Respondent for Respondent to perform remodeling work at the home located at 10550 East Autumn Lane in Hereford, Arizona. The contract price was $12,368.63. Complainant and Mr. Hopkins paid Respondent $6,000.00 toward the contract price.
On or about January 24, 2023, 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 Michael Springer. After a March 1, 2023 Jobsite Inspection, Investigator Springer issued a Written Directive to Respondent on March 2, 2023, 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 20th, 2023.
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - Trim around sliding door improperly installed
Investigator’s Observation: New trim around sliding door does not cover screws as previous trim did. Paint line and screws can be seen where old trim was installed.
Compliance Item: 16 - Transition strips installed poorly/incorrectly
Investigator’s Observation: Transition strips appear to be wrong design. Once side sticks up leaving a gap.
Compliance Item: 18 - Quarter round flooring trim installed incorrectly/poorly. Did not remove old trim, installed new on top of old
Investigator’s Observation: Trim in kitchen at cabinets is poor. End cuts do not line up.
Compliance Item: 19 - Flooring trim brad-nail holes not filled and painted
Investigator’s Observation: Nail holes are not filled on trim.
Compliance Item: 20 - Flooring transition strip came up, not installed correctly
Investigator’s Observation: Transition strip installed poorly, possible wrong type of strip for this installation.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 1 - Dry rot under sliding door not replaced/repaired
Investigator’s Observation: I am not able to see under this door. The contract does not mention replacing any rotted wood for this door. Door was not replaced.
Compliance Item: 3 - Charged for decking board material. I provided the material I had on site
Investigator’s Observation: Decking appears to match existing decking material, not new. However this would be a financial dispute item.
Compliance Item: 4 - Exterior paint peeling
Investigator’s Observation: Exterior paint is peeling, patchy. Appears that no preparation was performed prior to painting. Old Paint flakes are present indicating no prep. Exterior painting was credited back to Complainant after complaint was filed
Compliance Item: 5 - Exterior seems not caulked before paint
Investigator’s Observation: Transitions from trim to siding not caulked or prepped. Gaps in siding, trim not caulked. Old paint can be seen under trim at front of home. Exterior painting credited back to Complainant after complaint was filed.
Compliance Item: 6 - Exterior trim & windows not caulked before paint
Investigator’s Observation: Exterior trim and windows not caulked prior to painting. Exterior painting credited back to Complainant after complaint was filed.
Compliance Item: 7 - Exterior fascia not replaced/repaired
Investigator’s Observation: Complainant states a trade was made regarding the kitchen flooring and this is not an issue.
Compliance Item: 8 - Charged for 8hrs of carpenter work. No carpenter on site and not required for the work
Investigator’s Observation: Financial dispute.
Compliance Item: 9 - Charged for hauling debris
Investigator’s Observation: Financial dispute, although hauling is mentioned in the contract.
Compliance Item: 10 - -Drywall not repaired
Investigator’s Observation: Corrected by Complainant.
Compliance Item: 11 - Drywall not textured or painted
Investigator’s Observation: Corrected by Complainant.
Compliance Item: 12 - Ceiling paint peeling
Investigator’s Observation: Ceiling paint is is inconsistent, appears to be bare in some areas of living room, flaking around edges. Possibly just primer on ceiling. Very Flat. Interior painting credited back to Complainant after complaint was filed.
Compliance Item: 13 - Charged for a new sliding glass door, replace and install
Investigator’s Observation: Credit for door received after complaint was filed from Respondent and Complainant had a copy of credit at JSI.
Compliance Item: 14 - Charged for R&R siding hardboard panel
Investigator’s Observation: Complainant was unsure regarding this item, unverified.
Compliance Item: 15 - Charged for R&R vinyl floor covering
Investigator’s Observation: Complainant states old vinyl is still underneath new vinyl but is not a problem. Complainant just did not want to be charged for removal. I cannot verify what's under the new vinyl and would also be a financial dispute.
Compliance Item: 17 - Exterior stairs painted. Were supposed to have NOT been painted
Investigator’s Observation: Contract is not clear. Just states exterior painting. Unverified. Exterior painting credited back to Complainant after complaint was filed.
All errors in original.
After the expiration of the Written Directive, Investigator Springer ascertained that Respondent did not perform any corrective work. Consequently, a Compliance Inspection was not conducted.
Thereafter, Investigator Springer forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).
The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.
The hearing was scheduled to convene on June 5, 2023, at 1:00 p.m. On the date and at the time set for hearing, Complainant appeared on her own behalf with Mr. Hopkins. Investigator Springer was present. Respondent did not appear through an authorized member, employee, or attorney, notwithstanding proper notice of the hearing. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.
Investigator Springer testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes. Investigator Springer testified that Respondent’s contract did not contain all of the required elements for a contract, specifically, an estimated completion date and the advisement to the homeowner regarding how to file a complaint with the Registrar.
Investigator Springer explained that he did not order Respondent to correct many of the items of Complaint because by the time of the Jobsite Inspection, Complainant had “gotten tired of waiting and corrected the items herself.”
Complainant testified that she made multiple attempts to work with Respondent regarding the items of deficiencies and incomplete work, prior to filing the Complaint. Respondent did not respond to Complainant’s communications.
Complainant testified that she agreed with Investigator Springer’s testimony and that Respondent did not attempt to perform any work during the period of the Written Directive.
Mr. Hopkins testified that Respondent contacted him on March 17th or 18th, 2023, and informed him that Respondent could not perform any work prior to March 27, 2023. Because March 27, 2023, was beyond the deadline specified in the Written Directive, Mr. Hopkins and Complainant decided to proceed with the hearing.
Administrative notice is taken of Respondent’s prior License record on June 6, 2023. Such prior License record reflects that Respondent’s License No. 317853 was first issued on February 22, 2018, and is active. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and one complaint resulting in discipline 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 uncontroverted evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. 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 uncontroverted evidence of record established that Respondent’s contract document fails to contain the estimated date of completion of all work to be performed under the contract and the advisement that the property owner has the right to file a written complaint with the registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).
The uncontroverted evidence of record established that Respondent did not complete the corrective work following the Written Directive being issued, and that no valid justification for such failure existed. 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 Number 317853 for a period of seven (7) 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 (30) 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 (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) 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, June 7, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
Pink Restoration, LLC
[email redacted]
Marlou Sponhower
[email redacted]
Mike Springer
[email redacted]
By: OAH Staff