ALJDEC decisions subject to certification as final

09F-3422-ROC · Registrar of Contractors · 2009-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2009 at 9:00 a.m. APPEARANCES: Complainant Tom J. Frishkorn and his wife Erica Frishkorn appeared on their own behalf; Respondent Jazmarmat Enterprises LLC dba Acid Stain Flooring appeared through José Andujo, General Manager. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On August 23, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC223496, Class C-05 for Residential Concrete Staining and Coating to Respondent Jazmarmat Enterprises LLC dba Acid Stain Flooring, a limited liability company. On December 15, 2008, the Registrar received a complaint against Respondent’s license from Complainant Tom J. Frishkorn, which alleged numerous workmanship deficiencies in a floor at Complainant’s home to which Respondent had applied concrete coating. According to the complaint, Respondent had last performed work on the floor on September 25, 2008 and had been paid in full for the job. The Registrar sent a copy of the complaint to Respondent for its immediate attention. On January 13, 2009, the Registrar received Complainant’s request for hearing. Complainant stated that, “[b]ecause of the poor condition of the floor, we were forced to have the floor redone by another company.” On April 29, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(7), (15), and (3) (namely A.A.C. R4-9-108). On May 8, 2008, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation and affirmatively alleged that Complainant’s removal and replacement of the floor using other contractors should preclude the Registrar from disciplining Respondent’s license. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on August 20, 2009. Complainant and his wife, Erica Frishkorn, testified and submitted six exhibits. Respondent’s General Manager José Andujo testified. Hearing Evidence Mr. and Mrs. Frishkorn’s house is approximately five years old. It has approximately 4,000 square feet, approximately 2,000 on the first level and approximately 2,000 on the second level. Most of the public or common rooms, such as the formal living room, formal dining room, kitchen, breakfast nook, and a den, are on the first level. In addition, a guest quarters and two bathrooms are on the first level. In the summer of 2008, the carpets on the first level of Mr. and Mrs. Frishkorn’s house were becoming worn. Mr. and Mrs. Frishkorn began investigating a stained concrete floor, which they thought would be “environmentally friendly.” Initially, Mr. and Mrs. Frishkorn considered installing the stained concrete floor themselves. They removed the carpets from the first level of their house and exposed the concrete slab. At the end of the summer of 2008, Mr. and Mrs. Frishkorn decided to refinance their house. They negotiated a new interest rate and a closing date. The lender told them that the bare concrete floor made the house unfinished. To close on the refinancing, Mr. and Mrs. Frishkorn would have to finish the floor on the first level. Mrs. Frishkorn found Respondent on the internet. Respondent’s General Manager Mr. Andujo met with Mr. and Mrs. Frishkorn and showed them sample colors for their floor. They selected “aged bronze,” which has brown, gold, and green in a mottled pattern, for the entire first level of their home. On September 20, 2008, Mr. and Mrs. Frishkorn accepted Respondent’s proposal to “prep, resurface, stain, [and] seal” 1,925 square feet of the first level of Mr. and Mrs. Frishkorn’s house for $7,651.81, which included tax and $50.00 to remove the carpet in the guest room and linoleum in the laundry room. Mr. and Mrs. Frishkorn paid Respondent $3,825.90 to start the job. The back of Respondent’s proposal stated that, “[o]nce the sealer has been applied the stain can no longer be changed.” On Monday, Respondent’s crew started the job. Mr. and Mrs. Frishkorn and their family had to move out of their house temporarily for the staining and sealing parts of the job because of the strong odors. Respondent’s crew completed the job on Thursday. On that evening, Mr. and Mrs. Frishkorn returned home. Because it was dark outside when they returned, they did not get a good look at the floor. Mrs. Frishkorn used Pay Pal to remit the remaining $3,825.91 due under the contract to Respondent. On Friday, Mr. and Mrs. Frishkorn examined the floor more closely. To their dismay, the entire floor was blue with green, rather than the green with brown “aged bronze” that their contract with Respondent had specified. They contacted Mr. Andujo. On Friday, Mr. Andujo examined the floor and agreed that the floor was the wrong color. He told Mr. and Mrs. Frishkorn that Respondent would correct the color but, because he had a vacation planned in Florida for the next ten days, he would not be available to supervise Respondent’s crew’s correction of the color. Mr. and Mrs. Frishkorn agreed to wait until Mr. Andujo’s return from his vacation to have the floor corrected. To show his good faith, Mr. Andujo returned the $3,825.91 that Mrs. Frishkorn had paid him. Mr. Andujo then left for Florida. A day or so later, Mr. and Mrs. Frishkorn testified that they noticed that the floor seemed to be peeling up and had white flecks on it. They consulted other contractors. Mr. and Mrs. Frishkorn testified that all the contractors told them that color could not be corrected after sealant had been applied to a stained concrete floor and that repairs would take at least four days, because the existing floor would have to be completely ground off. Mr. and Mrs. Frishkorn testified that they grew concerned because it did not seem that Mr. Andujo knew what he was talking about when he had told him that he could correct the color of the floor. Mr. and Mrs. Frishkorn also testified that the date that they would have to close on their refinancing was fast approaching. If the floor was not finished by that date, they would lose the favorable interest rate. Mr. and Mrs. Frishkorn also testified that, because they felt that they could not walk on the floor that Respondent had applied, they could not use the rooms on the lower level of their house, including the kitchen and laundry room. In addition, Mrs. Frishkorn’s mother had made flight reservations to stay with them the week of Halloween and they felt that the guest quarters might not be available if they did not expedite repairs. On October 9, 2008, Mr. and Mrs. Frishkorn hired John Gallegos of Precision Architectural Surfaces, License No. ROC189741, Class K-09 for Dual Concrete, to do the following work: To sand existing concrete floor screen or profile to open up top coat. Apply #155 waterborne then a H60 brolcast to ensure adhesion. A microtop a scruch coat . . . .

Mr. and Mrs. Frishkorn paid Precision Architectural Surfaces a total of $8,000.00 to perform this work and prepare the floor for another concrete stain application. Precision Architectural Surfaces had included in its bid application of an “aged bronze” concrete stain, for a total of $11,891.00. Instead, on October 28, 2008, Mr. and Mrs. Frishkorn elected to have Scott Bofamy of Creative Concrete apply the stain, at an additional cost to them of $6,000.00. The invoice that Mr. and Mrs. Frishkorn submitted for Creative Concrete did not show a license number. According to the Registrar’s records, on September 7, 2007, the Registrar revoked License No. ROC210278, Class C-61 for Residential Limited Remodeling and Repair, previously issued to Creative Concrete by Scott, LLC. Mr. Bofamy was the qualifying party on that license. Mr. and Mrs. Frishkorn also paid a woman, whom they did not identify at hearing, $5,700.00 to etch the concrete stain that Creative Concrete applied. They did not ask the Registrar to order that Respondent reimburse them for this work because it was not included in Respondent’s original contract. The day after Mr. Andujo returned from Florida, he called Mr. and Mrs. Frishkorn and asked to schedule Respondent’s crew for repairs. Mr. Andujo told Mr. and Mrs. Frishkorn that he had purchased materials for the repairs. Mr. and Mrs. Frishkorn told Mr. Andujo that they had hired other contractors to remove and replace the floor. They sent Respondent a videotape of themselves pulling up the floor to demonstrate its deficiencies. On October 30, 2008, Mr. Andujo sent Mr. and Mrs. Frishkorn an e-mail, informing them that, after consulting the Registrar and his attorney, he had concluded that they still owed him the $3,825.91 that he had returned to show his good faith after they had agreed that they would allow Respondent to attempt to repair the floor. Mr. Andujo stated in relevant part as follows: The law states that if you are not happy with the work performed by a licensed contract[or] you have the right to contact the Registrar of Contractors and file a formal complaint. At that point an inspector from the ROC sets a date for a site inspection. The inspector reviews the work and sends a corrective work order if he deems it necessary. The homeowner then needs to allow the contractor access and opportunity to correct any work the inspector has listed on the corrective work order. Once the work is corrected another site inspection is scheduled and if the home owner is still not satisfied then a formal hearing is scheduled with a judge who will rule on the matter.

Mrs. Frishkorn testified that, until she received Mr. Andujo’s e-mail, she had not known about the Registrar. She could not believe that the Registrar would keep her from firing a contractor for good cause in the middle of a job, especially under the circumstances. Because Mr. Andujo threatened to file a lien against Mr. and Mrs. Frishkorn’s house, they paid the $3,825.91 that he demanded and, shortly thereafter, filed their complaint to the Registrar against Respondent’s license. Mr. Andujo testified that Respondent tells customers that the color of concrete stain cannot be changed after the seal is applied to let them know that they cannot change their mind on a color selection after it has been sealed. Complainant’s situation was different; the color was correctible. Mr. Andujo testified that the system that he proposed to use to correct the color of Mr. and Mrs. Frishkorn’s floor involved using a screening round to remove the sealer and was similar to what Precision Architectural Services’ proposal had described. Mr. Andujo testified that the going rate for such services was $1.50/square foot and that Precision Architectural Services had overcharged Mr. and Mrs. Frishkorn. Mr. and Mrs. Frishkorn requested that the Registrar require Respondent to pay them what they had paid to Precision Architectural Services and Creative Concrete to remove Respondent’s floor and to reapply the “aged bronze” concrete stain. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] Complainant did not show that Respondent acted in the capacity of contractor under any name other than the name on its license. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(15).[5] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license.[6] The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[7] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation can no longer be remedied by corrective work.[8] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[9] That is not the case here. The floor was correctible and in fact has been corrected. Based on the dates of the appraisals and invoices that Mr. and Mrs. Frishkorn submitted, it appears that Precision Architectural Services and Creative Concrete actually finished their work after the date that Respondent promised. Mr. and Mrs. Frishkorn therefore have not established that they should not have waited ten days for Mr. Andujo to return from vacation. As a licensed contractor whose license is in good standing,[10] Respondent is presumed to have the expertise to correct errors and workmanship deficiencies. Mr. and Mrs. Frishkorn have not established that they were justified in refusing to allow Respondent access or opportunity to attempt to perform repairs, especially after they promised Mr. Andujo that they would do so. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(7)[11] and (3)[12] in its construction or application of the stained concrete floor at Complainant’s residence. To the extent that Complainant suffered any damages, such damages were a result of his decision to hire other contractors, not Respondent’s contracting law violation. Mr. and Mrs. Frishkorn may be entitled to some civil damages in a judicial forum for Respondent’s admitted application of the wrong color stain to their floor. But they are not entitled to any relief in this administrative forum, especially for the cost of hiring an unlicensed, revoked contractor to repair Respondent’s deficient workmanship. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss Case No. 09-3422 against Respondent Jazmarmat Enterprises LLC dba Acid Stain Flooring’s License No. ROC223496, Class C-05, without prejudice to Mr. and Mrs. Frishkorn’s right to file a civil action for breach of contract or malpractice in a judicial forum. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, August 25, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of August, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” [6] See A.R.S. § 32-1154(A)(23), which includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [7] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [8] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [9] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. [10] According to the Registrar’s current record, as a result of Respondent’s proven violations in Case No. 08-2132, its license was placed on disciplinary probation between March 23, 2009 and September 19, 2009. Because Complainant did not establish any contracting law violation, the license history is not considered as a factor in aggravation of the penalty. The probation would not have prevented Respondent from attempting to repair the floor. [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [12] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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