ALJDEC

01F-2695-ROC · Registrar of Contractors · 2002-03-22

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 19, 2002

APPEARANCES: Complainant appeared on her own behalf; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Janette McGillicuddy brings this action regarding Respondent’s installation of a hardwood floor in Complainant’s house. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. In addition, Respondent in its Answer to the Citation and Complaint raised a defense based on the two-year limitations period for complaints found in A.R.S. § 32-1155(A). Such a defense is an affirmative defense that requires Respondent to appear and prove facts in support of it. Because Respondent did not appear, it has waived any affirmative defenses. Having considered Complainant’s evidence and testimony and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of provisional revocation. FINDINGS OF FACT 1. Respondent Grand Canyon Floors, Inc. dba Canyon State Carpet One is the holder of a class C-08 specialty license (No. 106987) issued by the ROC. That license authorizes Respondent to perform installation and repair of all types of floor covering materials and accessories in residential structures. (See, Arizona Administrative Code (A.A.C.) R4-9-103.) Respondent’s President and Qualifying Party is Donna Randall. 2. In January 1999, Respondent installed a hardwood floor at Complainant’s house. After informal complaints from Complainant, Respondent performed a “screen and recoat” of the floor in January 2000. According to an employee of Respondent at the jobsite inspection performed by ROC Inspector Warren Duncan, the colored “filler” material that is part of the flooring was re-done in January 2000 as part of the “screen and recoat.” 3. In May 2001, Complainant filed a complaint with the ROC about the finish of the floor. Inspector Duncan went to the property to inspect the site and meet with the parties. A Corrective Work Order (CWO) was issued on June 20, 2001, which addressed the finish issue and an issue about the color of the filler that Complainant had brought to the Inspector’s attention at the jobsite inspection, apparently without objection by Respondent’s representatives. The CWO does not require Respondent to take any action regarding the finish, but finds a problem with the filler color being inconsistent “with color range of flooring” and requires Respondent to correct the filler color “by appropriate means.” Inspector Duncan testified at the hearing that the type of flooring selected by Complainant (Brazilian Cherry wood) has a range of shades of color that differs plank- to-plank; the planks are various degrees of lighter and darker color. An employee of Respondent’s told him at the jobsite inspection that, in a situation where there is a range of plank color shades, it is industry standard to use a filler color that is somewhere between the lightest plank and the darkest plank. Inspector Duncan found that the color of the filler used in Complainant’s floor was lighter than the lightest plank and, therefore, needed to be corrected. 4. Respondent’s counsel sent a letter to the ROC in July 2001, stating that Respondent objected to the filler issue being included in the CWO because it was not stated on the complaint form and because it had been more than two years since installation of the floor. The letter also gave notice that Respondent would not comply with the CWO. 5. Shortly thereafter, Complainant sent a letter to the ROC amending her complaint to include the filler color issue and Inspector Duncan performed another inspection, with all parties present, reaching the same conclusion as before. Another CWO was issued regarding only the filler color in August 2001. Again, Respondent politely refused to do the correction. 6. Inspector Duncan performed a pre-hearing inspection on March 14, 2002, and found no changes. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); Arizona Administrative Code (A.A.C.), OAH Rule R2-19-119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19- 119(A). Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met that burden. 2. Respondent has violated A.R.S. § 32-1154(A)(7), (23), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, by failing to install the floor in a workmanlike manner and failing to correct defects as ordered by the ROC. 3. A review of current ROC records shows that Respondent’s license was canceled on February 26, 2002. Pursuant to A.R.S. § 32-1154(C), the cancellation of the license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license. 4. Under the circumstances of this case, this ALJ concludes that the appropriate remedy is to give Respondent one more chance to correct the filler color. If Respondent refuses, the Registrar should revoke the license. Complainant may then make a claim to the Residential Contractors’ Recovery Fund.

. . .

RECOMMENDED ORDER IT IS RECOMMENDED that Class C-08 license 106987, held by Respondent Grand Canyon Floors, Inc. dba Canyon State Carpet One, be revoked beginning the effective date of the Registrar’s Order unless Respondent has corrected or caused to be corrected in a workmanlike manner the flooring filler color as described in the June 20, 2001, and August 15, 2001, Corrective Work Orders. IT IS FURTHER RECOMMENDED that if Respondent completes the corrections on or before the effective date of the Registrar’s Order, the license revocation shall not take place. IT IS FURTHER RECOMMENDED that, along with any above-provided penalties, Respondent pay a civil penalty of $150.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 payment of any outstanding prior civil penalty is made.

Done this 21st day of March 2002.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of March 2002, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826