ALJDEC - Licensing
2023A-10086-CHC-ROC · Registrar of Contractors · 2024-03-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
David Carpini ,
COMPLAINANT
v.
Bath Planet of N Arizona LLC
License No. ROC 322509,
RESPONDENT
No. 2023A-10086-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 11, 2024, 9:00 A.M.
APPEARANCES: Complainant David Carpini appeared on his own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Letters A - M.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Bath Planet of N Arizona, LLC (Respondent), is the holder of License Number 322509 issued by the Registrar of Contractors (Registrar).
2. On or about September 8, 2023, David Carpini (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work by Respondent in connection with renovation work at a residence in Flagstaff, Arizona (“project”).
3. The Registrar performed an inspection of the project on October 5, 2023. An Addendum to the Complaint was submitted and the Registrar performed an Addendum inspection hon November 9, 2023. Thereafter, the Registrar issued a Written Directive, dated November 29, 2023 (“Directive”), requiring Respondent to remedy the following violations by appropriate means by December 17, 2023:
Compliance Item: 1 - Poor tile installation in both enclosures (lipping, uneven grout, chipped tiles allowing water incursion) There are several areas were tile lippage is outside workmanship tolerances of 1/32". There are several area with uneven grout 1. There are several areas that have tiles that are chipped. Respondent shall correct in an appropriate manner.
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 - Incorrect electrical: Light fixtures relocated without the installation of a junction box There is a junction box in each bathroom Section 314.29 specifies the requirements for junction boxes used in non hazardous locations. Junction boxes should be accessible for inspection, maintenance and repair jobs. The location must allow for safe operation and maintenance and be free from any obstructions. Junction boxes must be securely supported to prevent them from coming loose or moving. In addition, they have to be supported by framing, clamps or other similar supports. Box covers must be securely fastened to prevent accidental contact with live conductors. The covers should be closed with screws or something similar. They should press firmly against the surrounding surface and extend past the edge by no more than 1/8 inch. Accessible (as applied to wiring methods). Capable of being removed or exposed without damaging the building structure or finish or not permanently closed in by the structure or finish of the building. Based off these definitions the junction boxes do not meet minimum code requirements. Respondent shall correct in an appropriate manner.
Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.
Compliance Item: 4 - Poor molding installation: Molding was removed to repair floor. Replacement molding was supplied, but contractor reused removed molding pieces resulting in poor fitting that cracked the casing of the master bath door and wall texture lifting in guest bath. There were areas where the trim/molding was "forced to fit. Resulting it cracking and pulling Respondent shall correct in an appropriate manner.
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 - Poor tub installation in guest: Rear edge of bathtub is angled toward the wall instead of toward the tub causing water pooling and resulted in the grout washing away. Required repair and reseal of tub to tile joint. Wide caulking required and is aesthetically inferior. The caulking between the tub and wall is wide and poorly applied (sloppy). Respondent shall correct in an appropriate manner.
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 - Holes cut into drywall behind master vanity and commode that were left unrepaired or patched with pieces of floor tile! Respondent shall correct in an appropriate manner.
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 - Master vanity damaged due to burst pipe repaired with floor tile or wallboard. Respondent shall correct in an appropriate manner.
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 - Shower selector valve in guest bath incorrectly plumbed (mis-directed to incorrect spigots) The valve/knob does not show the correct selection for the function. Respondent shall correct in an appropriate manner.
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 - Exposed drywall screw head on shower door installation in guest bath Wrong type and color screw was used. Respondent shall correct in an appropriate manner.
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: 16 - ADDENDUM ITEM: Discovered 16-Oct 2023: Top of the guest shower enclosure was not sealed or finished. There is a finger-width opening at the top of the guest shower enclosure. The tops of the wall tiles of the tub/shower surrounds are not sealed properly to prevent moisture from penetrating behind the tile
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.
4. After the Complainant informed the Registrar on December 20, 2023, that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated December 28, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform all work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(b) for failure to perform all work in accordance with any applicable building codes and professional industry standards);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for March 11, 2024, at 9:00 A.M. At the March 11, 2024, hearing, Complainant David Carpini testified on his own behalf; no appearance was made on behalf of Respondent. Chris Allison, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit letters A - M; Respondent did not submit any exhibits.
6. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, member, manager, employee, attorney, or any other person. Consequently, Respondent did not present any evidence at the hearing to defend against potential disciplinary action being imposed against its license.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified he performed an additional inspection due to Complainant’s submission of an addendum. He stated that thereafter, he was advised that no corrective work was performed.
8. Complainant David Carpini testified that none of the Directive items were corrected. He stated there was no communication with Respondent since the Directive was issued and that there was an overarching lack of professionalism on the part of Respondent throughout the project.
9. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on November 2, 2018. The site also reflects one Open case, no Disciplined cases, and no Resolved/Settled cases.
CONCLUSIONS OF LAW
1. 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.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant 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).
4. The copy of the Notice of Hearing that the Registrar sent to Respondent at its address of record was reasonable and Respondent is deemed to have received such notices. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rules allegedly violated in this case are Arizona Administrative Code Rule 4-9-108(a) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,” and Arizona Administrative Code Rule 4-9-108(b) which requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform all work in a professional and workmanlike manner and failed to perform all work in accordance with any applicable building codes and professional industry standards, which was not in compliance with Arizona Administrative Code Rule 4-9-108(a) and Rule 4-9-108(b). There was no evidence presented to refute the existence of the Directive items.
8. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no dispute that corrective work was not performed and there was no evidence of a valid justification for failing to do so.
9. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Bath Planet of N Arizona, LLC’s, License Number 322509 is suspended for two (2) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
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, March 31, 2024.
/s/ Roger A. Geddes
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Bath Planet of N Arizona LLC
[email redacted]
David Carpini
[email redacted]
By: OAH Staff