ALJDEC - Licensing

2023A-04756-CHC-ROC · Registrar of Contractors · 2024-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elise and Rodney Mitchell,

COMPLAINANTS,

v.

Durango Masonry and Tile, LLC

License No. ROC 337830,

RESPONDENT.

No. 2023A-04756-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2024

APPEARANCES: Complainants Elise and Rodney Mitchell appeared on their own behalf. Greg Link and Daniel Link appeared on behalf of Respondent Durango Masonry and Tile, LLC. Arizona Registrar of Contractors Investigator Todd Anderson appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainants’ Exhibit 1 (photographs of debris)

FINDINGS OF FACT

Durango Masonry and Tile, LLC (“Respondent”) is the holder of License Number 337830 issued by the Arizona Registrar of Contractors (“Registrar”). Daniel Link is Respondent’s owner, Qualifying Party, and sole Member.

In or about May 2022, homeowners Elise and Rodney Mitchell (“Complainants”) contracted with Respondent for Respondent to perform remodel work at Complainants’ home.

On or about May 18, 2023, the Registrar received a Complaint against Respondent from Complainants alleging abandonment and poor work with respect to the project.

On June 21, 2023, Complainants submitted additional items of Complaint to the Registrar.

The Registrar assigned the Complaint to Investigator Todd Anderson. After a June 23, 2023 Jobsite Inspection, Investigator Anderson issued a Written Directive to Respondent dated June 27, 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 July 14th, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - The two windows in the same room as the AC, he put in. One was mine from the interior wall of the TV room and the other was a used window he purchased that was never worked in the shutting and locking in process

Investigator’s Observation: Verified. The window, which is located on the west-side of the home and opens up to the backyard, was hard to open and close. Contractor should repair, adjust or replace operating parts as required.

Compliance Item: 4 - Replacement patio door was smaller and cheaper than the original. Shot foam to close the gaps on either side. Door is not plumb. It is hard to close and is not sealed at the bottom.

Investigator’s Observation: Unable to verify foam installation between the door and the jam. The ROC does not engage in destructive testing. Was able to verify light coming from between the two doors which could indicate either inadequate weather stripping or that the door was not plumb. *Contractor should correct by appropriate means.

Compliance Item: 6 - There was a window in my TV room wall that was removed, and the opening was filled with drywall. The entire wall needed to be repainted. However, he thought he got a color match to that wall, it was wrong. There is a different color on the original remaining walls that doesn't match the original paint color.

Investigator’s Observation: Verified. Paint in surrounding areas should match as closely as possible. *Contractor should correct by appropriate means.

Compliance Item: 13 - The shower door was clear and the stationary part was black, and didn't match. Doesn't open in both directions

Investigator’s Observation: The contract only states “new shower door” and does not make mention to opening and closing in both directions. In relation to the dissimilar stripping at the base of both the swinging door and stationary glass pane, the sweep at the base of the swinging door is clear and the stationary pane is black. There should be an expectation of uniformity.*Contractor should correct by appropriate means.

Compliance Item: 14 - Mess created on the side of the house when stuccoing and painting were finished.

Investigator’s Observation: Contractor acknowledged and stated he would clean up the mess.

Compliance Item: 17 - There is still is a lot of trash and debris, like paint buckets, painting materials, etc, in my backyard as well as another area by one of my pool pumps that was used as a wash station for cement. It has hardened and needs to have more landscaping rocks placed in that area.

Investigator’s Observation: Verified. At the Jobsite Inspection, the contractor acknowledged his building materials left on the side yard and stated he would remove. The contractor is responsible for clean-up and removal of construction debris.

Compliance Item: 18 - The deadbolt on the door installed in the room enclosure does not work from the outside. Also, threshold is loose

Investigator’s Observation: Deadbolt was operable from the outside using the key. Threshold was loose/squeaky. *Contractor should correct by appropriate means.

Compliance Item: 19 - There is separation of wood in the corner of the room on the floor of the wall.

Investigator’s Observation: Verified. Observed a few areas in the backroom where the Baseboard was not securely attached, properly filled and sanded.

*Contractor should correct by appropriate means.

Compliance Item: 20 - Bags of cement left out by front door. Got wet and made a mess.

Investigator’s Observation: Verified. Observed dried concrete in proximity to the front door which will need to be removed. *Contractor should correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Split unit A/C does not work. He showed me that the fan worked in it but this was in February and I never saw any cool air come from the unit. It looked used and dirty and I repeatedly asked him for the warranty and user's manual which he said he would give me and never did.

Investigator’s Observation: Unverified. Complainant had another contractor repair. (Modified)

Compliance Item: 3 - Doggie Door busted up by workers

Investigator’s Observation: Unverified. Complainant had another contractor repair. (Modified)

Compliance Item: 5 - The 5 windows across the same wall were not at the same level. One was at least 3 1/2" higher than the others. I had to bring it to his attention before he had a worker try and fix it.

Investigator’s Observation: Unverified. Complainant had another contractor repair. (Modified)

Compliance Item: 7 - Wet drywall was allowed to fall all over my antique doll cabinet.

Investigator’s Observation: Unverified. Complainant cleaned drywall off of cabinet

Compliance Item: 8 - Purchased 2 black leather couches that both were damaged. One had tears in the leather and one couch had white paint dripped all over the back in a very large and obvious place

Investigator’s Observation: Unverified.

Compliance Item: 9 - My refrigerator has dents in the front from them carrying all of their tools etc., through my house.

Investigator’s Observation: Unable to verify source of the dents.

Compliance Item: 10 - I have a dry rock river in my front yard. They washed all of their tile, grouting and painting tools off right in front of the main door entry using the garden hose

Investigator’s Observation: Unverified. Area was cleaned.

Compliance Item: 11 - I was refinishing my front entry door when they started working. They were very aware of this. Within 2 days of me completing that job, there were obvious scratches and dings in the door.

Investigator’s Observation: Unverified. Unable to verify the source of the scratches.

Compliance Item: 12 - I chose the color "pewter" for the grout on the shower floor in my bathroom remodel. Some of it changed to a much lighter color. The contractor stated that it should have been sealed.

Investigator’s Observation: Observed some discoloration in the grout color. This could be the result of normal use. The Respondent stated that a sealant could have prevented the discoloration, but it was not specified in the contract that the Respondent would be responsible for applying sealant.

Compliance Item: 15 - The shingles on the roof on the enclosure were not the same color as the ones that were already there. There is only a small difference in color but this is just an example of things I had to compromise with what should have been done.

Investigator’s Observation: The color of the new shingles did not match exactly the originals, however, I was unable to verify that a different shingle was installed due to the age of the originals.

Compliance Item: 16 - Drop cloth and large piece of petrified wood stolen from backyard.

Investigator’s Observation: Unable to verify

All errors in original.

On July 14, 2023, Investigator Anderson received an email from Complainants stating that Respondent had contacted them on the final day of the Written Directive, however, Complainants were not available on that date to have Respondent perform any of the required corrective work.

On July 17, 2023, Investigator Anderson called Respondent and Respondent stated that Complainant had denied Respondent access on July 14, 2023. Investigator Anderson explained to Respondent that it was not reasonable to ask for access on the same day as proposed to perform the work, and further, that Respondent could not perform all of the work required by the Written Directive in one day.

Thereafter, Investigator Anderson forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a). The Citation did not charge Respondent with a violation of A.R.S. § 32-1154(A)(22), notwithstanding that a Written Directive had been issued and Investigator Anderson had determined that Respondent had not complied with the Written Directive. However, because the Registrar did not charge Respondent with a violation of A.R.S. § 32-1154(A)(22), the Administrative Law Judge cannot find a violation of this statutory provision.

Ms. Mitchell testified regarding the scope of the project. Ms. Mitchell testified that Respondent began work on the project in July 2022, and that Respondent last performed work on the project in March 2023. Ms. Mitchell testified that nine (9) months was too long to complete the scope of work. Ms. Mitchell testified regarding all of the debris that was created and left by Respondent, including cement debris and “trails” from the outside to the inside of the home, as well as stacks of dried cement. Ms. Mitchell asserted that Respondent’s work was unprofessional, its cleanup efforts were unacceptable, and she and her husband lost confidence in Respondent and were compelled to hire another contractor to complete, repair, and clean up the project.

Greg Link apologized for “it getting to this” and for this “experience.” Mr. Link also apologized for waiting until the last day of the Written Directive, and testified that he “did not think it would take longer than a few hours.”

Administrative notice is taken of Respondent’s prior License record on February 22, 2024. Such prior License record reflects that Respondent’s License Number 337830 was first issued on April 28, 2022, and is suspended for lack of bond, effective February 6, 2024. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. The standard of proof on all issues in this matter is that of 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.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-1154(A) provides the following:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

A.A.C. R49108(a) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The credible, substantial, and probative evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants 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).

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 337830 for a period of five (5) days.

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, February 27, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Elise and Rodney Mitchell

[email redacted]

Durango Masonry and Tile LLC

[email redacted]

Todd Anderson

[email redacted]

By: OAH Staff