ALJDEC - Licensing
2023A-07664-CHC-ROC · Registrar of Contractors · 2023-12-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Yvonne Godwin
COMPLAINANT,
v.
Rhino Construction & Remodeling LLC
License No. ROC 333636
RESPONDENT,
No. 2023A-07664-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 4, 2023, with the record held open until December 7, 2023 for the submission of additional evidence.
APPEARANCES: Complainant Yvonne Godwin represented herself. Everardo Flandes Rico represented Respondent Rhino Construction & Remodeling, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 5; Respondent’s Exhibit A; Exhibit B – The Registrar’s Administrative Record.
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FINDINGS OF FACT
1. On or about May 3, 2023, Respondent agreed to perform construction work at Complainant’s home for the amount of $60,217.15. Complainant paid Respondent $60,217.15 for the project.
2. Respondent did not provide Complainant with a written contract advising Complainant of her right to file a complaint with the Arizona Registrar of Contractors (Registrar) against Respondent for an alleged violation of Ariz. Rev. Stat. section 32-1154(A), within the time allowed by Ariz. Rev. Stat. section 32-1155(B).
3. On or about May 4, 2023, Respondent started work.
4. On or about June 29, 2023, Respondent stopped work.
5. On or about July 9, 2023, the Arizona Registrar of Contractors (Registrar) received a complaint from Complainant alleging poor workmanship on the part of Respondent.
6. On August 17, 2023, Registrar Investigator Mike Wiskow conducted a job-site inspection. At the job-site inspection, Investigator Wiskow substantiated several items in the Complainant. Investigator Wiskow also verified that Respondent hired an unlicensed contractor to perform construction on Complainant’s home.
7. On August 17, 2023, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows;
Dear Respondent: 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 6, 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:
Compliance Item: 1 - Electrical was done improperly and created fire hazards. Bedroom 1 has no power at all
Investigator’s Observation: Confirmed. Bedroom 1 has outlets and lighting that does not operate. All outlets, switches and light fixtures should work properly. Contractor should repair by appropriate means.
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: 2 - The west wall and part of the south wall of the Livingroom have no power
Investigator’s Observation: Confirmed. The Livingroom outlets do not work when a lamp is plugged in. All outlets, switches and light fixtures should work properly. Contractor should repair by appropriate means.
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: 3 - Kitchen has No working lights
Investigator’s Observation: Confirmed. The kitchen lighting is currently not working. All outlets, switches and light fixtures should work properly. Contractor should repair by appropriate means.
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: 4 - Kitchen has improper wiring with exposed wires.
Investigator’s Observation: Confirmed. There is wire showing at the upper cabinet outlet. Rough wiring/Romex should not be exposed. Contractor should repair by appropriate means. 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 - Did not install smoke detectors I provided
Investigator’s Observation: Confirmed. Respondent contract confirms "Like for Like". Smoke detectors should be installed. If code requires hard wired smoke detectors, they should be hard wired. Contractor should install smoke detectors by appropriate means. 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: 8 - Toilets not sealed Investigator’s Observation: Confirmed. The toilets should be caulked at the base. Contractor should repair by appropriate means. 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: 9 - Toilet crooked.
Investigator’s Observation: Confirmed. Toilets should be installed straight and level per manufacturer's recommendations. Contractor should repair by appropriate means. 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: 10 - Glazing not done properly,
Investigator’s Observation: Confirmed. Glazing on the tub is unsighlty. Contractor should repair by appropriate means. 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: 11 - Tub surrounds not done properly, streaks, runs, and gaps Investigator’s Observation: Confirmed. The tub surround has a gap. The surround is not secured properly. Contractor should repair by appropriate means. 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: 12 - The tub in bathroom 2 was damaged when installing the surround.
Investigator’s Observation: Confirmed. There is adhesive on the tub in the 2nd bathroom. Contractor should repair by appropriate means.
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: 13 - Countertops were improperly installed with a toxic chemical used to seal joints that was wiped all over the counters (butcher block) making them unsafe for kitchen use.
Investigator’s Observation: It is unclear if the joint compound is toxic. However, the gaps in the countertop are excessive. Contractor should repair by appropriate means. 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: 14 - Casings around windows and doors have gaps; they tried to correct with caulking but can still see gaps and uneven spots.;
Investigator’s Observation: Confirmed. Miter corners should be flat with no lippage. Contractor should verify each corner that needs repair and repair by appropriate means. 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: 15 - Stove vent hood improperly install. The person doing the electrical installed the hood. Hood does not vent out of the house even though holes were cut. Flap to the outside in missing.
Investigator’s Observation: Confirmed. The stove vent is currently vented with flex pipe which is not allowed. Smooth metal should be used for ducting material. Furthermore, the return air gravity flap has been removed. There should be a gravity flap.
Contractor should repair by appropriate means.
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: 17 - Master closet was not properly prepped or painted. No holes were patched or sanded smooth.
Investigator’s Observation: Confirmed. The texture on the walls in the master closet are unsightly and should be repaired. Contractor should repair by appropriate means. 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: 19 - Bathroom 3 drywall by door not properly completed Investigator’s Observation: Confirmed. Drywall in bathroom number 3 is unsightly and should be repaired. Contractor should repair by appropriate means.
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: 20 - Wall behind stove and dishwasher has multiple holes where they tried to run wires through. Rough patched but not sanded or painted
Investigator’s Observation: Confirmed. Drywall behind the stove is unsightly and should be repaired. Contractor should repair by appropriate means.
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: 21 - Master Bath - When painted, the shower was not properly taped off so there is paint on the surround and the door.
Investigator’s Observation: Confirmed. There is some paint in the master bath that should be cleaned up. Contractor should repair by appropriate means.
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: 26 - Multiple Electrical code violations per Licensed Electrical contractor.
Investigator’s Observation: Confirmed. *Dishwasher is hardwired with 12-2 romex. The 12-2 romex is exposed. Wire splices are outside of box. NEC 334.10(3), 334.15, 334.30(C), 334.40(B) *South east counter top receptacle shows open ground. Not GFCI protected. NEC 210.8(A)(6) *South west countertop receptacle powered by 15 amp lighting circuit. Not GFCI protected. NEC 210.8(A)(6), 210.11(C)(1) *Room next to kitchen is not wired correctly. 30v AC was observed on neutral wire. No outlets are working. Recommend running new home run and rewire aff ected receptacles. *Kitchen counter light switches not wired correctly. Neutral conductor used as a switchleg, ground wire used as a neutral. NEC 404.2(C), 250.6(A)(B) *Plastic protective bushing not installed on hood. Contractor should repair by appropriate means.
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.
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8. On August 18, 2023, the Registrar issued a Warning Letter to Respondent that provided, in relevant part, as follows:
.................
The Registrar received information indicating that you may be contracting with an unlicensed person named Martin Cervantes. Contracting with an unlicensed person is a violation of A.R.S. §§ 32-1154(A)(9) and (13)
.................
The Registrar does not presently intend to pursue disciplinary action for the alleged violations. However, this warning letter does not preclude the Registrar from electing to pursue action against your license for these violations in the future.
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Respondent completed corrective work during the time period for compliance under the Directive. However, due to Complainant’s work schedule, Complainant would only allow Respondent to perform work on Tuesdays, Thursdays, and Saturdays. At times, Complainant would allow Respondent to work on Sundays.
9. On August 30, 2023, Respondent requested an extension of time to correct all of the items listed in the Directive. See Exhibit C and the Registrar’s administrative record, pgs. 276-277.
10. Investigator Wiskow did not grant Respondent an extension of time to comply with the Directive.
11. On September 15, 2023, Investigator Wiskow conducted a compliance job-site inspection. Investigator Wiskow concluded that Respondent correctly repaired complaint items 1 through 5; 8 and 9. Investigator Wiskow concluded that Respondent had failed to correct complaint items 10 through 15, 17, 19, 20, 21, and 26.
12. On October 18, 2023, the Registrar issued a Citation alleging that Respondent violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108(A); Ariz. Rev. Stat. sections 32-1154 (9), (12), and (22).
13. Respondent filed a timely answer to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. A hearing was held on December 4, 2023.
16. At hearing, Complainant testified on behalf of herself. Everardo Flandes Rico (Mr. Flandes) testified on behalf of Respondent. Mr. Flandes is the qualifying party for Respondent. Investigator Wiskow testified regarding his investigation of the complaint.
17. Complainant testified that Respondent performed poor work on her home. Complainant denied that she forced Respondent’s workers to leave her home at any time. Mr. Flandes stated that Complainant forced Respondent’s workers to leave on several occasions. Mr. Flandes explained that Complainant would not only allow Respondent to work on the complaint items on Tuesdays, Thursdays, Saturdays, and at times, on Sunday. Mr. Flandes also explained that he could not have all trades present at one time performing work because the electrical work had to be performed before any other work.
18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 27, 2023, Respondent’s license was first issued on June 9, 2021, and is active. Such prior License record also shows that there is only one open complaint against Respondent. Respondent’s license has never been disciplined.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
The Administrative Law Judge may consider Registrar’s administrative
record. See Ariz. Admin. Code § R4-9-118.
The Registrar’s substantive policy statement 2017.01 sets out the following
pertinent information:
Denial of Access
Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.”
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5. The preponderance of the evidence shows that Complainant denied Respondent access to her home to make the repair required under the Directive on Mondays, Wednesdays, and Fridays. Therefore, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
8. The undisputed evidence established that Respondent’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.
9. The preponderance of the evidence shows Respondent aided an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(9). However, the Administrative Law Judge does not believe that discipline is appropriate in this matter as the Registrar has issued a Warning Letter to Respondent and Respondent does not have a disciplinary record.
RECOMMENDed order
Based on the foregoing, it is recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(B). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended for three 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, December 27, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
Mike Wiskow
[email redacted]
Yvonne Godwin
[email redacted]
Rhino Construction & Remodeling LLC
[email redacted]
By: OAH Staff