ALJDEC - Licensing

2024A-06268-CHC-ROC · Registrar of Contractors · 2024-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brittany Amber Werkmeister,

COMPLAINANT,

v.

Dewey Trail

DBA: Dewey Trail

License No. ROC 322167,

RESPONDENT.

No. 2024A-06268-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 30, 2024

APPEARANCES: Complainant Brittany Amber Werkmeister appeared on her own behalf. Dewey Trail appeared on behalf of Respondent Dewey Trail. Arizona Registrar of Contractors Investigator Doug Barrett appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Dewey Trail, doing business as Dewey Trail (“Respondent”), is the holder of License Number 322167 issued by the Arizona Registrar of Contractors (“Registrar”).

On or April 30, 2024, Brittany Amber Werkmeister (“Complainant”) contracted with Respondent to perform remodel work at her home.

On or about June 2, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Doug Barrett. After a July 2, 2024 Jobsite Inspection, Investigator Barrett issued a Written Directive to Respondent, dated July 5, 2024, 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 Friday, July 26, 2024.

You are directed to remedy the following violations by the appropriate means:

Complaint Item: 2 - Paint on appliances and lights.

Investigator’s Observation: Verified. I observed paint overspray on the bottom of the refrigerator in the kitchen, the handle to the stove and on the light fixture in the master bathroom. Contactor should correct by appropriate means.

Complaint Item: 4 - Paint on ceiling.

Investigator’s Observation: Verified. I observed paint brush/roller marks on the ceiling of bedroom one with the wall paint. I observed paint peeling on the patio ceiling at the transition from the eave. Contractor should correct by appropriate means.

Complaint Item: 5 - Got paint on cobblestone.

Investigator’s Observation: Verified. I observed paint overspray from the wall on the pavers at the outside bottom right of the side gate. Contractor should correct by appropriate means.

Complaint Item: 6 - Uneven door casings.

Investigator’s Observation: Verified. This item refers to the door trim at the front door and coat closet. The trim was cut long at the top leaving a point. Contractor should correct by appropriate means.

Complaint Item: 8 - Did not finish drywall.

Investigator’s Observation: Verified. I observed the garage ceiling drywall that was supposed to be completely replaced. I am unable to determine if it was or was not replaced. I did observed noticeable tape joints and uneven texture/paint throughout the ceiling. Contractor should correct by appropriate means.

Complaint Item: 10 - Sanding marks in concrete.

Investigator’s Observation: Verified. I observed swirl marks in the floor at the entrance to bedroom one. Contractor should correct by appropriate means.

Complaint Item: 11 - Did not fully epoxy floors missing spots.

Investigator’s Observation: Verified. I observed the floor coating in the kitchen and it did not go the whole way up to the kick panel at all cabinets or up close to the refrigerator and oven. Contractor should correct by appropriate means.

Complaint Item: 15 - Did not finish painting front door.

Investigator’s Observation: Verified. I observed old paint or overspray on the right side of the door by the hinges. Contractor should correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 1 - Peeled up epoxy flooring.

Investigator’s Observation: Unverified. I observed where paint had peeled up around several door jambs, however the complainant had painted these areas since with the wrong color. This item has been modified, no correction required.

Complaint Item: 3 - Pulled off paint/drywall.

Investigator’s Observation: Unverified. I observed a spot in the laundry room where paint had peeled off by the door frame. The complainant has repainted over this spot. This item has been modified, no correction required.

Complaint Item: 7 - Broken items from water damage.

Investigator’s Observation: Unverified. I observed possible construction debris on a portable solar panel in the garage closet. It is unknown who or what may have caused the damage. In response to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Complaint Item: 9 - Didn’t repair concrete.

Investigator’s Observation: Unverified. I observed two areas in the kitchen and one in the master bedroom where the complainant stated plumbing work had been done under the slab. The respondent did not do the concrete work after the plumbing repairs and the contract does not mention these locations as needing repairs. In response to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Complaint Item: 12 - Did not use proper epoxy flooring.

Investigator’s Observation: Unverified. I am unable to determine what product was used, no materials were on site. In response to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Complaint Item: 13 - Broke doorbell, broke garage sensor.

Investigator’s Observation: Unverified. The complainant stated she has repaired the door bell and to remove the garage sensors.

Complaint Item: 14 - Caulk on floors, did not finish caulking

Investigator’s Observation: Unverified. The complainant stated she hired another contractor to caulk the home. This item has been modified, no correction required.

All errors in original.

After the expiration of the Written Directive, Investigator Barrett conducted a Compliance Jobsite Inspection on July 30, 2024. Investigator Barrett ascertained that no corrective work was performed.

Thereafter, Investigator Barrett forwarded the Complaint to the Registrar’s Legal Department. 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).

Investigator Barrett testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and his Compliance Jobsite Inspection Notes. Investigator Barrett testified that the flooring throughout the home was concrete with epoxy coating. Investigator Barrett referenced the photographs he took at the Jobsite Inspection to illustrate the workmanship deficiencies he found.

Investigator Barrett explained that the items of Complaint that he did not verify were either modified by Complainant prior to the Jobsite Inspection, or he could not determine the cause of the issue. Investigator Barrett testified that there were no materials left at the jobsite and materials were not specified in the parties’ contract.

Complainant testified that she agreed with Investigator Barrett’s testimony and findings with the exception of his findings concerning the peeling epoxy flooring. Complainant testified that she painted over the floor because it was peeling and the condition would have worsened if she had not taken action.

Respondent testified that on June 3, 2024, after Complainant filed the Complaint, he went to the jobsite in an attempt to address Complainant’s concerns. However, Respondent did so unannounced, and Complainant contacted the police who advised Respondent to leave the property. The police retrieved Respondent’s materials for him. Respondent believed that because Complainant had previously called the police, that he was not welcome back to the property, and therefore, did not attend the Jobsite Inspection or the Compliance Jobsite Inspection. However, Respondent did not contact Investigator Barrett to discuss his concerns, there were no citations issued by the police, and no court orders in place preventing Respondent from attending either of the inspections or from attempting to comply with the Written Directive. Respondent asserted that he is willing to perform any remaining work, but “needs written permission” from Complainant before doing so. Respondent did not attempt to contact Complainant during the period of the Written Directive, which was the time period in which he would have been able to perform corrective work. Respondent testified that he believes Complainant filed the Complaint in order to avoid paying the contract balance.

Administrative notice is taken of Respondent’s prior License record on November 13, 2024. Such prior License record reflects that Respondent’s License Number 322167 was first issued on September 27, 2018, and has been suspended since September 5, 2024, for non-renewal. Such prior License record also reflects that there is only the instant open Complaint, and one resolved/settled complaint, and one complaint resulting in discipline 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.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

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 professional and 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 complete the corrective work following the Written Directive being issued and that valid justification for such failure did not exist. There were no citations for trespassing issued and no court orders in effect prohibiting Respondent from returning to the property. Further, Respondent never contacted the Registrar to express his concerns or seek guidance. Had Respondent contacted Complainant during the period of the Written Directive and had Complainant denied access to Respondent to perform the required corrective work during that period, such would have been valid justification for failure to comply. However, that was not the case here. Respondent did nothing to attempt to comply with the Registrar’s Written Directive. 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 Number 322167 for a period of five (5) 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 (30) 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)(7), 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, November 14, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Doug Barrett

[email redacted]

Dewey Trail

DBA: Dewey Trail

[email redacted]

[email redacted]

Brittany Amber Werkmeister

[email redacted]

By: OAH Staff