ALJDEC - Licensing
2024A-00385-CHC-ROC · Registrar of Contractors · 2024-07-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Hannah Ruiz,
COMPLAINANT,
v.
Infinity Kitchens and Baths LLC
DBA: IKAB
License No. ROC 339999,
RESPONDENT.
No. 2024A-00385-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on July 8, 2024.
APPEARANCES:
For Complainant: Hannah Ruiz and Luis Ruiz, Complainant’s spouse.
For Respondent: Stephen Hunt.
For the Registrar of Contractors: Investigator Mike Wiskow.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant introduced Complainant’s Prehearing Disclosure Statement Form and Complainant’s Exhibits 1 and 2. Respondent introduced Respondent’s Prehearing Disclosure Statement Form and Respondent’s Exhibit 1.
_____________________________________________________________________
FINDINGS OF FACT
Infinity Kitchens and Baths LLC (Respondent) is the holder of License No. 339999 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 23, 2023, Hannah Ruiz (Complainant) and Luis Ruiz (Homeowners) entered into a contract with Respondent for, among other things, remodeling the guest and master bathrooms.
On or about January 10, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment, poor work, and other issues.
The Registrar assigned the complaint to Investigator Mike Wiskow, who issued a Jobsite Inspection Notice on January 22, 2024, scheduling the inspection for February 12, 2024. On February 7, 2024, Investigator Wiskow rescheduled the inspection to February 20, 2024, due to a scheduling conflict.
Investigator Wiskow conducted the jobsite inspection and issued a Written Directive From the Registrar to Respondent on February 21, 2024, requiring a response on March 15, 2024. That Directive was incomplete, so a second Written Directive From the Registrar was issued on March 6, 2024, and it provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Laundry room, Laundry flooring under sink has huge opening
Investigator’s Observation: Confirmed. There are unsightly gaps around the laundry sink drain in the floor. Flooring around drain should not have gaps,
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 2 - Guest bathroom, new flooring is uneven and detaching
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 3 - Guest bathroom, silicone was used to glue flooring down
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 4 - Flooring Project throughout home has lippage, is splitting, has gaps and is sealed with silicone caulk
Investigator’s Observation: Confirmed. The flooring installation project throughout the home does not meet workmanship standards. There are gaps in several areas of the flooring throughout the home. There is lippage throughout. the home. There the floor is cracking in several locations throughout the home. There are several areas where clear silicone was used to "seal" gaps. The flooring should be installed over a properly prepared subfloor with no cracking, gaps, lippage or silicone and per manufacturer's recommendations.
Contractor should identify all areas of the flooring project that have cracking, gaps, lippage and silicone and repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 5 - Guest bathroom, flooring is not leveled
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 6 - Guest bathroom, holes in new flooring
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 7 - Guest bathroom, kickboards are missing under cupboards, baseboards are not installed
Investigator’s Observation: Confirmed. The toe kicks are missing on several cabinets throughout the project. Toe kicks should be installed at cabinets where appropriate.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 8 - Guest bathroom, crack inside new bathtub, scuff marks on outside of new bathtub
Investigator’s Observation: Confirmed. The new tub has a small crack in it as well as scuff marks on the exterior.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 10 - Guest bathroom, bathtub creeks due to no support under new bathtub
Investigator’s Observation: Confirmed. The bathtub squeaks when walked on. The tub should not squeak.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 11 - Utility closet, old flooring was removed but new flooring was never installed
Investigator’s Observation: Confirmed. The flooring in the utility room is not finished.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 12 - Kitchen, uneven flooring ; Kitchen, new flooring is splintering and chipping
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 13 - Kitchen, missing kickboards never installed
Investigator’s Observation: See Allegation # 7
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 14 - Kitchen, new flooring is detaching and creasing
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 15 - Kitchen, cupboards have been broken from demo by stove and under kitchen sink
Investigator’s Observation: Confirmed. There are two cabinets that have loose face frames.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 16 - Main bedroom, gap between flooring and exterior door; Main bedroom, flooring is uneven between main bedroom and bathroom
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 19 - Main bathroom, new countertop was over measured causing a gap between cupboard and shower
Investigator’s Observation: Confirmed. Thais has created a gap between the cabinet and the wall. There should not be a gap between the two.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 21 - Main bathroom, burn mark on new mirror
Investigator’s Observation: Confirmed. There is a mark on the new mirror. Contractor should repair or replace by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 22 - Main bathroom, chips on new counter top
Investigator’s Observation: Confirmed. There are chips in the counter tops. Contractor should verify any of these chipped areas and repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 23 - Main bathroom, new countertop was not what we ordered
Investigator’s Observation: Confirmed. Even though the color change may have been agreed to verbally, the contract states that no verbal agreements will be binding. The main bathroom countertops should match what the contract says.
Contractor should replace countertop with the color selected in the original contract by appropriate means.
Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Compliance Item: 24 - Main bathroom, ponywall next to toilet has silicone stuck to it
Investigator’s Observation: Confirmed. There is caulk on the wall.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 26 - Main bathroom, new shower wall was not capped
Investigator’s Observation: Confirmed. There should be a cap on the tall pony wall.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 28 - Main bathroom, shower is not draining properly ; Plumbing was done by an unlicensed contractor without our knowledge in
Investigator’s Observation: Confirmed. The shower pan fills with water.
Contractor should determine cause and repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 29 - Garbage disposal was installed improperly, water has a hard time draining
Investigator’s Observation: Confirmed. Disposal has been repaired. However there is a leak at the pea trap area.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 31 - Living room, new curved base board is not painted the same as the other new base boards
Investigator’s Observation: Confirmed. The curved section has a different color paint. The paint should match.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 32 - Front door, new flooring has a gap between floor and wall; Front door, new flooring has chips and splintering ; Front doo
Investigator’s Observation: See Allegation #4
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 33 - Paid extra to have all flooring leveled properly and was not done
Investigator’s Observation: There is no evidence to suggest more money was paid to have flooring leveled. However, subfloor should be prepared properly in order to comply with workmanship standards. See Allegation #4.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 34 - Baseboards not completed
Investigator’s Observation: Confirmed. There are several areas throughout the project that need the baseboards finished.
Contractor should complete by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
Compliance Item: 35 - Spout too low in main bath.
Investigator’s Observation: Confirmed. The spout was installed lower than agreed upon.
Contractor should repair by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-109.
The Written Directive required Respondent to notify Investigator Wiskow of Respondent’s compliance with the directive prior to 5:00 p.m. on March 21, 2024.
Respondent was given two extensions to complete the Directive but was denied a third extension.
On March 28, 2024, Investigator Wiskow issued a Compliance Inspection Notice, setting the inspection for April 17, 2024. Investigator Wiskow made the following findings about Compliance Items that were deemed not completed:
Compliance Item: 4 - Flooring Project throughout home has lippage, is splitting, has gaps and is sealed with silicone caulk Investigator’s Observation: . . . A substantial amount of flooring was replaced. However there is a chip in the flooring between the bedrooms as well as a small cut in the flooring in the laundry room. There’s also a gap or chip in the floor in the main bath.
. . .
Compliance Item: 7 - Guest bathroom, kickboards are missing under cupboards, baseboards are not installed
Investigator’s Observation: . . . Baseboards were used as toe kicks in the main and master baths. They are not tall enough.
. . .
Compliance Item: 10 - Guest bathroom, bathtub creeks due to no support under new bathtub
Investigator’s Observation: . . . Not Completed
. . .
Compliance Item: 34 - Baseboards not completed
Investigator’s Observation: . . . There is a baseboard in the laundry area that has a crack in the caulking.
On April 22, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on or around May 6, 2024. Regarding Compliance Item 4, Respondent’s Answer stated that he “replaced the Laundry room, two of the smaller bedrooms[,] the kitchen, the hallway, part of the Primary Bedroom, and the Primary bathroom and closet.” Respondent stated that he spent over $7,000 on materials, delivery, labor, and debris hauling. Respondent stated that he corrected this item in good faith. Regarding Compliance Item 7, Respondent’s Answer stated that Complainant consented to using the baseboards as toe kicks because Respondent offered to install them for free, using left over materials. Furthermore, Respondent stated that the baseboards were only between 1⁄4 to 1⁄2 inches shorter than most toe kicks and serve the same purpose effectively. Regarding Compliance Item 10, Respondent’s Answer stated that Respondent told Homeowners how to properly fix the tub but that that Homeowners refused to let it fix the tub appropriately. Regarding Compliance Item 34, Respondent’s Answer stated that the work was repaired but that the one remaining uncorrected crack in the caulking must have been an oversight.
Mr. Hunt had COVID-19 during some of the Directive period and was unable to be at the worksite during his illness.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On May 30, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at July 8, 2024, at 1:00 PM.
The hearing was held via Google Meet and in person. Investigator Wiskow testified; Hannah Ruiz, Luis Ruiz, and Steve Fitch testified for Complainant; and Stephen Hunt, Jason Besler, and Aaron Harmon testified for Respondent.
Investigator Wiskow testified to the events as set forth in the Notice of Hearing packet.
Homeowners testified that they hired Respondent to create their dream home but that Respondent did poor work on the home. After the Directive was issued, Respondent waited a long time before starting the corrective work, and after starting, Respondent did not follow its own proposed schedule. Complainant testified that the original toe kicks were lost; Respondent wanted to use the baseboards, and Complainant agreed before she knew that they would be so much shorter than toe kicks.
Steve Fitch was a general contractor and Complainant’s uncle. Mr. Fitch testified that some of the work was not done to industry standard. He also testified that the bathtub may not have been properly supported when first installed but that Respondent’s efforts to fix the squeak were what he would have done as well.
Mr. Hunt testified that Respondent did its best to fix the work. Respondent corrected almost everything in the Directive. Other than the bathtub, the remaining issues were minor: scratches and cracks that could be quickly repaired. For the bathtub, Homeowners refused to allow Respondent to appropriately fix it. Respondent proposed to raise the bathtub and support it from below, which would require cutting through some insulation underneath the bathtub. After Homeowners denied Respondent permission to fix the bathtub, Respondent attempted to fix the bathtub with foam and other methods that were not effective.
Mr. Harmon testified that he was there for the conversation when Homeowners agreed to allow the use of baseboards as toe kicks. He stated that, in his opinion, the toe kicks were tall enough. He also stated that Mr. Hunt was good to his customers.
Mr. Besler testified that most of Respondent’s customers were happy. He also testified to the attempts to correct the squeaking bathtub. First, Respondent used foam. When that did not work, Respondent sought to support the bathtub from below. Directly underneath the bathtub was an access box, and around that was insulation. The access box did not provide sufficient access to determine what caused the squeak or to provide additional support for the bathtub. Respondent determined that to provide additional support, it would need to pierce the insulation. Homeowners told Mr. Besler not to pierce the insulation, meaning that he could not add support to the bathtub. However, supporting the bathtub from underneath would not necessarily fix the squeaking.
Administrative notice was taken of Respondent’s prior License record on July 22, 2024. According to that record, Respondent’s License No. 339999 was first issued on August 8, 2022; Respondent’s license had only one open complaint.
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.
Respondent bears the burden of proof to establish an affirmative defense 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.”
A contractor accepts the surface upon which they work. Prior to performing work, a contractor should inspect the surface for flaws or defects that would affect the work to be performed; if the surface is unacceptable, the contractor should call the defect to the owner’s attention so that the owner can choose to pay for corrective work or for the contractor to request a warranty disclaimer.
A contractor cannot use a general waiver contract provision to escape responsibility for failure to perform all work in a professional and workmanlike manner as required by the Registrar.
Complainants may not refuse access to contractors because doing so impinges on the contractor’s ability to defend itself and to use the Registrar of Contractors as a privilege.
Complainants do not have the right to dictate how a contractor satisfies the Directive Compliance Items. When a complainant refuses to allow a contractor to take the appropriate corrective action, a complainant effectively denies the contractor a meaningful opportunity to correct its work. Denying a contractor the opportunity to correct its work constitutes a denial of access for the impacted Directive Compliance Items.
The preponderance of the evidence established that Respondent failed to perform work in a professional and workmanlike manner on all of the issues identified in the Compliance Inspection Findings in violation of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A).
As to Complaint Item 10, the preponderance of the evidence established that Homeowners denied Respondent the opportunity to correct the issue. Accordingly, Respondent had a legal justification for its failure to take appropriate corrective action as to that item and was not in violation of A.R.S. § 32-1154(A)(22).
As to the remaining Complaint Items, the preponderance of the evidence established that Respondent failed to take appropriate corrective action on those issues identified in the Compliance Inspection Findings 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 for 1 day Respondent’s License No. 339999.
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, July 29, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
c/o Legal Department
[email redacted]
Hannah Ruiz
[email redacted]
Mike Wiskow
[email redacted]
Infinity Kitchens and Baths LLC
[email redacted]
By: OAH Staff