ALJDEC - Licensing

2023A-04452-CHC-ROC · Registrar of Contractors · 2023-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cheryl Stevens,

COMPLAINANT

v.

Mitchell's Remodeling, LLC

License No. ROC 333830,

RESPONDENT

No. 2023A-04452-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 13, 2023

APPEARANCES: Complainant Cheryl Stevens appeared via Google Meet on her own behalf. Vincent Mitchell appeared via Google Meet on behalf of Respondent Mitchell’s Remodeling, LLC. Registrar of Contractor Investigator Mike Springer appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A, B and C.

_____________________________________________________________________

FINDINGS OF FACT

Mitchell’s Remodeling, LLC (Respondent) is the holder of License No. 333830 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 26, 2022, Cheryl Stevens (Complainant) signed a contract with Respondent for repair of flooring, trim and facia due to water damage. Further, on or about January 24, 2023, the parties agreed that Respondent would remove broken and damaged subflooring in the kitchen, family room, utility room, hallway and master bedroom.

On or about April 16, 2023, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on May 23, 2023.

Investigator Springer then issued a written directive that same day 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 June 9th, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - In the master bedroom, the newly installed subfloor flexes excessively. It is wavy and grossly out of level. This makes it unsuitable for Pergo laminate flooring installation.

Investigator’s Observation: Floor has a large bow in the middle of the master bedroom. Floor is out of level at walls approximately 2 1/4 Inches. Respondent was aware of the floor being out of level. A previous job contract just prior to this flooring job for siding repair done by the Respondent stated "Ensure home is level". Regular OSB plywood was used instead of tongue and groove. There is flexing at the joints that are not supported.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - In the master bedroom, there is a excessive gap along the room's perimeter - between the wall and subfloor up to 1 inch. Daylight was visible because of no support blocking underneath. Contractor applied a caulk/paste over this gap

Investigator’s Observation: It appears that construction adhesive was used along the outside edge of the flooring in the master bedroom.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - On the exterior, the vents were not reinstalled in the soffit. Contractor stated that "they are not needed

Investigator’s Observation: Soffits on South, East and North were replaced. There are vents on the unreplaced West section of the home. It would be industry standard to install soffit vents to match existing soffits.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - The master bedroom OSB subfloor seams in multiple areas move up and down; possibly the screw heads snapped Investigator’s Observation: Addressed in item 1.

Governing Rule: N/A

Compliance Item: 3 - The master bedroom joists bowed up at the center of the room; while the perimeter wall sagged up to 1.5 inches or more.

Investigator’s Observation: Addressed in item 1.

Governing Rule: N/A

Compliance Item: 4 - The perimeter wall was not underpinned from underneath before the old subfloor was removed. It is standard practice with manufactured homes to support the perimeter wall when removing the subfloor

Investigator’s Observation: I cannot verify this item.

Governing Rule: N/A

Compliance Item: 7 - The front entry door does not close properly

Investigator’s Observation: Front door operated normally at the inspection.

Governing Rule: N/A.

On June 15, 2023, 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) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about June 21, 2023, Respondent e-mailed an Answer to the Registrar.

On or about July 7, 2023, a Notice of Hearing was issued setting a hearing on August 21, 2023, at the Office of Administrative Hearings, an independent state agency.

After two continuances, a hearing was held on November 21, 2023.

At hearing, Investigator Springer testified as to his involvement and the above timeline.

Investigator Springer testified that in the master bedroom the floor was out of level by approximately 21⁄4 inches, when typically the acceptable standard is 1/8 of an inch. Further, there was an excessive gap along the master bedroom’s perimeter. Finally, Investigator Springer testified that there were vents of the un-replaced west sections of the home, and it was industry standard to install soffit vents to match existing soffits.

Complainant testified on her own behalf and submitted three exhibits into evidence.

Complainant testified that the items remained unrepaired. Further, Complainant testified that Respondent requested to perform the corrective work during the weekends, but that she refused because she worked all week and needed that time to do chores around the house. Complainant also testified that she never fired Respondent.

Mr. Mitchell testified on behalf of Respondent. He testified that after ripping up the bedroom floor, he observed that the floor was unrepairable and needed to be replaced.

Further, Mr. Mitchell testified that there were times when Complainant and her son would get aggressive and one time he walked off of the job.

Mr. Mitchell also testified that he believed that the Complaint was filed with the Registrar because Complainant did not like his proposed settlement offer.

As to the corrective work, Mr. Mitchell testified that he had recently moved so he could only perform the corrective work on the weekends. Mr. Mitchell testified that Complainant refused to allow him to do the same.

Finally as to the soffits, Mr. Mitchell testified that because there was no venting coming from the roof, they were not necessary, and that Complainant’s son had stated that the project looked good without the soffits.

Administrative notice was taken of Respondent’s prior License record on December 6, 2023. Such prior License record reflected that Respondent’s License No. 333830 was first issued on June 25, 2021, and reflected that there was 1 open complaint, namely the present complaint.

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 that Respondent’s work was not in conformity with the Registrar’s standards. The floor in the master bedroom was not level, there was an excessive gap along the master bedroom’s perimeter, and there was no soffit vents to match the existing soffits. 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).

There was no evidence presented as to whether or not the contract met the requirements of the statute, therefore, there was no violation of 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established that while the corrective work was not performed, Complainant did not allow Mr. Mitchell to work on the weekends once he had moved to perform the corrective work. Both Investigator Springer, and Mr. Mitchell testified that there was enough time to complete the corrective work. While the tribunal appreciates that Complainant would like time to perform her chores on the weekend after working all week, the tribunal finds that it was unreasonable to not allow Mr. Mitchell to work on the weekends to correct her floor. Therefore the tribunal finds no 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. 333830 for a period of one day, for violation of A.R.S. § 32-1154(A)(3).

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, December 6, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Cheryl Stevens

[email redacted]

Mitchell's Remodeling, LLC

[email redacted]

By: OAH Staff