ALJDEC - Licensing
2023A-10983-CHC-ROC · Registrar of Contractors · 2024-05-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Gulas,
COMPLAINANT
v.
R & D Appel LLC
DBA: The Edge Remodeling,
License No. ROC 237727 and 349555
RESPONDENT
No. 2023A-10983-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 12, 2024
APPEARANCES: Complainant Michael Gulas appeared on his own behalf. Respondent R & D Appel LLC, doing business as The Edge Remodeling did not appear.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
R & D Appel LLC, doing business as The Edge Remodeling (Respondent) is the holder of License No. 237727 and 349555 issued by the Arizona Registrar of Contractors (Registrar).
On or about November 21, 2021, Michael Gulas (Complainant) entered into a contract with Respondent for a bathroom remodel.
On or about September 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.
The Registrar assigned the complaint to Investigator Patricia Schuette. After a jobsite inspection, Investigator Schuette 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 November 21, 2023.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 2-Downstairs Bath Cabinet drawer is crooked after install.
Investigator’s Observation: Verified. The drawer is not sitting square and is crooked. Repair within appropriate means.
. . . .
Complaint Item: 3-Downstairs Bath P-trap not installed under sink as requested.
Investigator’s Observation: Verified. The sink does not have a p-trap as required per plumbing code 1002.1 Fixture traps. Respondent to bring up to code requirements.
. . . .
Complaint Item: 4-Downstairs Bath glue from previous incorrect cabinet install still visible.
Investigator’s Observation: Verified. There is some remnants of previous caulking. Repair within appropriate means.
. . . .
Complaint Item: 5-Dowstairs Bath shiplap wall not installed per contract.
Investigator’s Observation: Verified. The shiplap was not able to be installed due to spacing issues between the back of the toilet and the shiplap itself. Per Respondent a credit for the cost to be applied to the overall total.
. . . .
Complaint Item: 6-Downstairs Bath sink installed on counter incorrect. Gap behind not sealed.
Investigator’s Observation: Verified. There is a small space on the backside of the top mounted sink bowl and the countertop that is not sealed.
Respondent to repair within appropriate means.
. . . .
Complaint Item: 7-Downstairs Bath grout on floor not corrected. Holes still present.
Investigator’s Observation: Verified. There were a few places where the floor grout had some voids and not up to the finish edge of the tile.
Respondent to identify areas and repair within appropriate means.
. . . .
Complaint Item: 8-Downstairs Bath sealing around countertops not completed.
Investigator’s Observation: Verified. There is a small section behind the sink bowl where the backsplash is not caulked/sealed. Repair within appropriate means.
. . . .
Complaint Item: 10-Hall Bath sink faucet scratched at install not replaced.
Investigator’s Observation: Verified. Respondent stated that a credit would be applied to total bill for the damage.
. . . .
Complaint Item: 12-Hall Bath GFCI not connected after multiple attempts to fix.
Investigator’s Observation: Verified. It appears that each bathroom was separated to have its own GFCI however; the second outlet does not trip power when the GFCI is tripped in the Hall bath. Respondent to identify cause and repair within appropriate means.
. . . .
Complaint Item: 14-Hall Bath metal plumbing provided not used under sink not corrected.
Investigator’s Observation: Verified. Braided supply line was only installed on one side not the other. Repair within appropriate means.
. . . .
Complaint Item: 15-Hall Bath sealing around small window still not completed.
Investigator’s Observation: Verified. There is inconsistent grout between tile and window frame on the window above the tub. Repair within appropriate means.
. . . .
Complaint Item: 16-Hall Bath sealing around countertops not completed.
Investigator’s Observation: Verified. There is a gap between the countertop and backsplash. Repair within appropriate means.
. . . .
Complaint Item: 17-Hall Bath cabinets have damage and functional issues not corrected.
Investigator’s Observation: Verified. There were a few dings/gouges on the face of the doors/drawers. There is also a vanity door that rubbed the drawer fronts when opened. Respondent to identify areas and repair within appropriate means.
. . . .
Complaint Item: 18-Hall Bath medicine cabinet replaced and damage to hallway not painted.
Investigator’s Observation: Verified. Repair within appropriate means.
. . . .
Complaint Item: 20-Hall Bath toilet crooked and not corrected.
Investigator’s Observation: Verified. The toilet bowl/base is not installed perpendicular or straight with the wall. Repair within appropriate means.
. . . .
Complaint Item: 21-Master Bath tub filler damaged and not replaced.
Investigator’s Observation: Verified. There is damage/scratch on the fixture. Respondent mentioned applying a credit to total invoice. Correct within appropriate means.
. . . .
Complaint Item: 22-Master Bath tile around windows and niche damaged and not replaced.
Investigator’s Observation: Verified. There are cut tiles with jagged edges. Respondent to identify all tiles and repair within appropriate means.
. . . .
Complaint Item: 23-Master Bath small window installed twice and crooked per inspection.
Investigator’s Observation: Verified. It is uncertain if the window is not installed square or if the tile return to window is not level. Respondent to determine causation and repair within appropriate means.
. . . .
Complaint Item: 24-Master Bath hanging above tub damage and not replaced.
Investigator’s Observation: Verified. One of the sconces on the light fixture is cracked. Respondent to correct within appropriate means.
. . . .
Complaint Item: 25-Master Bath ledge in shower is poorly done and needs to be retiled.
Investigator’s Observation: Partially verified. The nature of the tile causes some challenges with grout joint inconsistencies with curved areas however; there are a few places where the tile is chipped. Repair within appropriate means.
. . . .
Complaint Item: 26-Master Bath proper sealing in shower not complete per inspection.
Investigator’s Observation: Verified. The sealing or waterproofing is behind the tile and not able to view however, the complaint was really about the horizontal to vertical transitions and where the shower floor tile meets the wall tile that is cracked. Respondent to repair within appropriate means.
. . . .
Complaint Item: 27-Master Bath cabinets installed incorrectly wall tile and floor not replaced.
Investigator’s Observation: Verified. There is a miss measure either from the vanity, countertop, or shower dimension causing an alignment problem with the overlap of the shower wall tile over the countertop, shortened backsplash on the top and a slight overhang of vanity over the shower curb.
Respondent to determine causation and correct within appropriate means.
. . . .
Complaint Item: 28-Master Bath cabinets have functional issues and damage not corrected.
Investigator’s Observation: Verified. There are some gouges/chips and drawers/doors that do not operate full swing or pull. Respondent to repair within appropriate means.
. . . .
Complaint Item: 29-Master Bath sealing on countertops not completed.
Investigator’s Observation: Verified. The top to backsplash is not fully caulked or sealed. Repair within appropriate means.
. . . .
Complaint Item: 30-Master bath several areas of floor grout defects have not been fixed.
Investigator’s Observation: Verified. There are several locations where there is pinholes or low spots in the floor grout. Respondent to identify locations and repair within appropriate means.
. . . .
Complaint Item: 31-Master Bath floor tile around toilet damaged and not replaced.
Investigator’s Observation: Verified. There is caulking that is on grout where the toilet used to sit. Respondent to repair within appropriate means.
. . . .
Complaint Item: 33-Master Bath bedroom ceiling paint damaged not repaired or repainted.
Investigator’s Observation: Verified. There are a few spots where containment was secured to wall/ceiling and damaged paint when removed.
Repair within appropriate means.
Investigator Schuette issued two extensions of the deadline to comply as the parties were engaged in discussions attempting to schedule work to be completed. Upon the expiration of the second extension, Investigator Schuette was notified no corrective work had been performed.
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); and A.R.S. § 32-1154(A)(22).
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on April 12, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A March 6, 2024 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on April 12, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Schuette testified as to her involvement in the complaint.
Complainant testified that he never prevented Respondent from accessing the property to perform the corrective work required.
Administrative notice is taken of Respondent’s prior License record on May 6, 2024. Such prior License record reflects that Respondent’s License No. 237727 was first issued on September 16, 2024, and was voluntarily cancelled on January 11, 2024. Such prior License record also reflects that there were one other open complaint, one resolved/settled complaint, and one prior complaint resulting in discipline against Respondent’s license.
Administrative notice is taken of Respondent’s prior License record on May 6, 2024. Such prior License record reflects that Respondent’s License No. 349555 was first issued on January 11, 2024, and is active. Such prior License record also reflects that there were no open or prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
Respondent’s voluntarily surrendered license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).
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 evidence established that 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 A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in 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 Nos. 237727 and 349555 for a period of five days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any 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, May 6, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Patricia Schuette
[email redacted]
R & D Appel LLC
[email redacted]
Michael Gulas
[email redacted]
By: OAH Staff