ALJDEC decisions subject to certification as final

07F-M1525-ROC · Registrar of Contractors · 2007-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2007. APPEARANCES: J. B. and Alicia McGill appeared personally. True Coat, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. True Coat, L.L.C. (“Respondent”) is the holder of License No. 215654, a Class C-62 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Respondent’s sole member and qualifying party is MaryJane Gregg. 3. J. B. McGill and Alicia McGill responded to a newspaper advertisement for hiring a contractor to install laminate wood flooring in their recently remodeled home. The advertisement named “True Coat” and listed “ROC215654,” which is Respondent’s contracting number. The advertisement offered the following scopes of work: laminate wood flooring; designer tile work; and interior and exterior painting. The advertisement invited potential customers to contact “Catherine.” 4. The “Catherine” named in that advertisement is Catherine Gregg, MaryJane Gregg’s mother in law. 5. Catherine Gregg had Respondent’s permission to place ads for Respondent and Respondent agreed to compensate her for her work. 6. As a result of the advertisement, Catherine Gregg and Complainants entered into an agreement for the installation of laminate wood flooring in Complainants’ newly remodeled home. Complainants agreed to pay a contract price of $1,200.00 plus materials supplied by Complainants. 7. In November 2006 the laminate wood flooring was installed. Catherine Gregg and several other workers performed the installation. However, Catherine Gregg did the bulk of the installation work. 8. After the work was completed, Complainants filed a Complaint with the Registrar alleging deficient workmanship by Respondent. 9. In response to the filed Complaint, the Registrar’s assigned inspector, Dennis Cook, performed a jobsite inspection to view the installation of the flooring and the damage caused by the installation. As a result of the jobsite inspection, Inspector Cook issued a Corrective Work Order dated March 12, 2007, directing Respondent to perform the following remedial repairs:

Contractor to make the following corrections by appropriate means:

1. Remove glue from planks, or replace as needed. 2. Correct gap at threshold of door to back patio. 3. Correct damaged and improperly installed baseboards. 4. Complete flooring and trim at base of the dishwasher. 5. Replace damaged doorjambs and casings that were improperly cut. 6. Properly complete installation of missing transition strips at doorways. 7. Replace damaged doorjambs and casings that were improperly cut. 8. Correct gaps in flooring where they occur. 9. Correct lippage in flooring where it occurs. 10. Complete the flooring in the linen closet. 11. Correct broken transition strip at the 3rd Bedroom.

The scratch on the refrigerator door could not be confirmed to be the contractor’s responsibility, and no correction is required.

10. The Corrective Work Order was sent to Respondent at its address of record with the Registrar. 11. The Registrar issued a Citation and Complaint in Case No. M07-1525 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7), (23) and (3), namely A.A.C. R4-9-108. 12. The Registrar issued a Notice of Hearing advising the parties of the time, place and location of the scheduled hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 13. On December 17, 2007, Catherine Gregg filed a motion to continue the December 18, 2007 hearing on behalf of Respondent. That motion was denied.[1] 14. The commencement of the hearing before the Office of Administrative Hearings, an independent agency, was delayed for 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 15. Catherine Gregg is found to be an authorized agent and/or employee of Respondent. She had permission to solicit business in Respondent’s name, who also agreed to compensate her for her work. Catherine Gregg also filed a motion to continue on Respondent’s behalf. Therefore, Respondent is responsible for the work performed at Complainants’ residence by its agent and/or employee(s), including the resulting damages cause by the deficient installation, in response to its authorized newspaper advertisement. 16. Respondent failed to comply with the Corrective Work Order. 17. In addition to the deficiencies set forth in the Corrective Work Order, it is further determined that Respondent’s installation of the flooring also damaged interior doors, which were cut shorter to allow space for the installed flooring. There is credible evidence that the doors that were cut need to be replaced. 18. Complainants’ children have sustained injuries due to gaps and other deficiencies in the flooring installation. 19. Complainants have received bids from other licensed contractors for performing required repairs to interior damage cause by Respondent’s installation and to perform a proper installation of flooring in a workmanlike manner. Those bids are significantly higher than the original installation. 20. Respondent’s installation does not meet minimum workmanship standards.

21. Respondent’s deficient workmanship and failure to comply with the Registrar’s written directive are wrongful acts that substantially injured Complainants. 22. The Registrar’s records reflect Respondent has posted a minimum $1,000.00 bond.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent is liable for the acts and/or omissions of its agent and/or employee, Catherine Gregg. 4. The scope of work performed on Complainants’ residence is within the scope of a Class C-62 contracting license. The scope of that license classification is as follows:

C-62 MINOR HOME IMPROVEMENTS

Remodeling, repairs, and improvements to existing structures or appurtenances not to exceed $2,500.00 for labor and materials per project, per dwelling or appurtenance. The minor home improvement contractor shall not perform structural work to any existing structures or appurtenances, including load bearing masonry or concrete work (with the exception of on-grade flat work) and load bearing carpentry work (with the exception of patio or porch covers). All electrical, plumbing, air conditioning, heating, boiler, and roofing work shall be performed by an appropriately licensed contractor.

5. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER

Respondent’s Class C-62 contracting license shall be suspended on the effective date of the Order entered in Case No. M07-1525 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Corrective Work Order dated March 12, 2007 and replaced the damaged doors described in Finding No. 17 above at its sole cost and expense. If Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in Case No. M07- 1525, and it is approved by the Registrar, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class C-62 contracting license shall be placed on active suspension for a period of 9 days, followed immediately by a period of one year probation.[2] This additional disciplinary penalty shall commence on the effective date of the Order entered in Case No. M07-1525, or the date of the Registrar’s approval of Respondent’s compliance with the terms of the Order, whichever is later. In addition to the above-provided penalties, if any, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. M07-1525 shall result in the automatic revocation of Respondent’s contracting 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) (3), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $3,250.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period and only if no claims are then pending. 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 40 days from the date of that certification. Done this day, December 19, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] The motion to continue was belatedly filed on December 17, 2007. It was ruled upon as a preliminary matter at the hearing. Respondent should have had an authorized representative at the hearing. Parties cannot safely assume that a motion to continue will be automatically granted. [2] The active suspension is calculated as one day for each month since the issuance of the Corrective Work Order, and the probationary period is calculated as one year from the performance of the work on Complainants’ project.

-----------------------

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