ALJDEC - Licensing
2023A-06908-CHC-ROC · Registrar of Contractors · 2024-02-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Claudia Osborne Harsany,
COMPLAINANT
v.
Duran Built LLC
License No. ROC 207100,
RESPONDENT
No. 2023A-06908-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 31, 2024
APPEARANCES: Claudia Harsany appeared on her own behalf. Michael Thal, Esq. appeared on behalf of Respondent. James Minor, Julian Duran, and Joe Zavala appeared as witnesses on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1, 5, 7, 10, 15 and 16. Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.
_____________________________________________________________________
FINDINGS OF FACT
Duran Built LLC (Respondent) is the holder of License No. 207100 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 12, 2023, Claudia Harsany (Complainant) entered into a contract with Respondent for, among other things, fixing a roof leak in the bathroom, painting the entire bathroom, painting the ceilings, touch-up work on the walls, new countertops, and fixing cracks. The contract did not include elements #1 or #9 of Ariz. Rev. Stat. § 32-1158(A).
On or about June 16, 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 Gregory Johndrow. After a jobsite inspection, Investigator Johndrow 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 September 11, 2023.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: “Said he would deliver countertop failed to.”
Investigator’s Observations: Verified. The respondent has not installed the counter tops as stated in the contract. The respondent shall complete this work as stated per contract.
Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...
. . . . .
Complaint Item 4: “Shoddy work.”
(This is the complainant’s description to me of the bathroom base boards not painted, the loose bathroom light fixture and the poorly patched drywall above the towel bar.)
Investigator’s Observations: Verified. I observed the base boards are primed and were not painted, the light fixture is loose and there are two drywall patches above the towel bar that are unsightly. The respondent shall perform the necessary corrections in these locations.
Governing Rule: A.R.S. § 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 15: “Poor workmanship.”
(This is the complainant’s description to me of the nails protruding through the plywood on the underside of the patio cover, the gutter not sealed at the down spout, the loose door handle on the utility room door and the unsightly spray foam application around the pipes and the framing inside the utility room.)
Investigator’s Observations: Verified. I observed the nails used on the patio cover have penetrated through the underside of the plywood, the downspout connected to the roof gutter is not sealed, the door handle installed on the utility door is loose and the spray foam applied inside the utility room has an unsightly appearance. The respondent shall perform the necessary corrections in these areas.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
Following the issuance of the written directive, the Respondent completed some work. After the deadline in the directive expired, Investigator Johndrow conducted a compliance jobsite inspection on September 12, 2023 and ultimately forwarded the matter to the Registrar’s legal department.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Johndrow testified that he conducted a jobsite inspection on August 4, 2023, and that, of the 23 items that Complainant listed in her Complaint, 3 items formed the basis of his written directive. Investigator Johndrow also testified consistently with his written directive.
Investigator Johndrow testified that his written directive was issued on August 23, 2023, with a compliance due date of September 11, 2023. After that time had expired, Investigator Johndrow testified that he called Complainant who advised she was not satisfied with the corrections made and requested a compliance jobsite inspection (CJSI). That CJSI was held on September 22, 2023.
Investigator Johndrow further testified that at the CJSI, he found that some of the work had been performed, but that there were still some items that did not meet the Registrar’s standards. Therefore, Investigator Johndrow deemed this non-compliance and forwarded the matter to the Registrar’s legal department for the issuance of a citation.
Investigator Johndrow further testified that he sent Respondent three “warning letters” regarding Respondent’s lack of permitting, being out of scope of its license, and failing to contain all of the elements of a contract.
Because the issue of permitting was not corrected by the time the matter was ripe for the issuance of a citation, Investigator Johndrow indicated he included it in his request for the issuance of a citation. He further included a request that Respondent be cited for lacking the proper elements of a contract and for performing work outside the scope of its license.
Complainant testified that she was constantly trying to get Respondent to fix its mistakes and that her condominium was unfinished. Complainant further testified that she “dropped the countertops” because she did not want Respondent to do any more damage. Complainant continued with her testimony by stating that Respondent had no tools, no lighting, no level and “didn’t know how to paint.” Complainant stated that everything Investigator Johndrow testified to was correct.
Julian Duran, Respondent’s qualifying party, testified that Respondent began work on or about January 12, 2023. Approximately two weeks later, the “lion’s share” had been completed. Mr. Duran estimated that approximately 85% - 90% of the work had been completed, at which point he testified Complainant “kicked him off” the project.
Mr. Duran further testified that, upon receiving a copy of the Complaint, he immediately contacted Complainant to attempt to correct any issues she may have had, even before the jobsite inspection was scheduled. On July 5, 2023, Complainant advised Mr. Duran that he could come inspect the work, but not fix the work.
Mr. Duran testified that after the written directive was issued, he again attempted to contact Complainant in order to arrange access and begin corrective work. After four days, he was finally given access. Mr. Duran testified that he was told by Complainant to begin on the items that was needed to be done on the outside of the home. Eventually, he was let inside the home to complete corrective work.
Mr. Duran testified that Complainant had told him that Respondent’s corrective work was sufficient, but then “changed her tune” when the CJSI occurred. He further testified that he and Complainant were set to do a final walk-through of the corrections on the evening of September 11, 2023, but that Complainant cancelled it. Mr. Duran testified that this would have been his opportunity to fix anything with which Complainant still had an issue. Notwithstanding, Mr. Duran believed that the work Respondent had done by then was done to standard, if not better than standard.
With regard to the permitting issue, Mr. Duran testified that he told Investigator Johndrow that the work was all done to code and that he would have been able to obtain a permit for Complainant after-the-fact, but that Complainant declined and did not pay for one.
With regard to Respondent’s contract lacking all of the required elements as required by Ariz. Rev. Stat. § 32-1158, Mr. Duran testified that he was unaware that the contract required the two missing items and promptly corrected it, supplying a copy to Investigator Johndrow.
Finally, Mr. Duran testified that, at one time, Respondent did have a plumber’s license.
Joe Zavala, painter, testified on behalf of Respondent. Mr. Zavala testified that he completed touch-up work inside the bathroom and when the work was complete, Complainant was satisfied.
James Miner, worker, testified on behalf of Respondent. Mr. Miner testified that he was originally denied access, but when he was finally able to gain access, he trimmed the foam in the outside utility shed. Mr. Miner testified that Complainant was happy with the results when he was finished.
Administrative notice is taken of Respondent’s prior License record on January 31, 2024. Such prior License record reflects that Respondent’s License No. 207100 was first issued on September 17, 2005, and is active. Such prior License record also reflects that there was this open complaint and no prior 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 built the shed without the proper permits in place. While Respondent offered to retroactively obtain one for Complainant, Respondent had a duty not to begin work without the proper permits in place. Therefore, the evidence established that Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).
The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A) at the time the contract was entered into. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).
The evidence established that Respondent knowingly contracted beyond the scope of its license when it performed the electrical and plumbing work in the utility shed. Therefore, Complainant established that Respondent acted in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
The evidence established that Respondent did not complete the project in a workmanlike manner. Respondent contends that, because a homeowner is happy with the results of a project, it immediately makes it within standard. However, the homeowner’s happiness is not how the Registrar determines whether work is within standard. The standard the Registrar applies, and therefore the Administrative Law Judge applies, is whether work was completed in a professional and workmanlike manner.
In this case, the combination of Investigator Johndrow’s testimony, coupled with the pictures taken at the CJSI, provide enough evidence to establish, by a preponderance of the evidence, 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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent did make attempts at appropriate correction, but fell short of meeting the Registrar’s standards. Respondent contends that Complainant denied access, but also concedes that it was able to finally access both the interior and exterior of the home to make corrections. Furthermore, Mr. Duran stated that he believed his work was completed either at standard or beyond standard. Unfortunately, at the CJSI, the same work that Mr. Duran believed to have been at or above standard was deemed below the Registrar’s standards by Investigator Johnbrow. 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. 207100 for a period of one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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)(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 terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty 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, February 15, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
By: OAH Staff