ALJDEC decisions subject to certification as final

2010A-18613029-ROC · Registrar of Contractors · 2010-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2010 APPEARANCES: Complainant Joe Funicelli appeared on his own behalf. Shawn Bolduc and Jeffery Rasmusson appeared on behalf of Respondent Anthem Floors Plus, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Anthem Floors Plus, L.L.C. (“Anthem”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT Anthem is the holder of a Class K-8 license (No. 210347) issued by the Registrar of Contractors (“ROC”). Shawn Bolduc is a member of Anthem and its qualifying party. Jeffery Rasmusson is also a member of Anthem. On June 3, 2005, Anthem installed carpet in various areas throughout Complainant Joe Funicelli’s home. Shortly after installation, Mr. Funicelli began to notice certain deficiencies in the carpet installation including buckling, protruding staples, and misalignment of seams. Mr. Funicelli contacted Anthem on numerous occasions and Anthem responded to Mr. Funicelli’s concerns by re-stretching the carpet in certain areas. Anthem replaced all of the carpet on the second floor of the home. Mr. Funicelli initially filed a complaint against Anthem with the ROC under Case Number 08-1753. A jobsite inspection was conducted by ROC Inspector Jim Dimond. On March 7, 2008, Inspector Dimond issued a Corrective Work Order (“CWO”) to Anthem. On May 16, 2008, Inspector Dimond issued an Amended CWO to Anthem. Thereafter, the ROC closed Case Number 08- 1753 due to the fact that Mr. Funicelli did not file a request for hearing. On November 17, 2009, Mr. Funicelli filed a second complaint against Anthem with the ROC alleging the following deficiencies and attaching the two previously issued CWOs in Case No. 08-1753: 1) Carpet is buckling in office and entrance to office; 2) Carpet is buckling in living room; 3) Carpet is buckling on stairs leading to second floor; and 4) Carpet [is] buckling on landing leading to second floor.[1]

Inspector Dimond testified that he did not conduct a second jobsite inspection or a pre-hearing inspection because Mr. Funicelli waived an inspection due to the fact that the items on the second complaint were the same items contained in the previous complaint. Inspector Dimond further testified regarding Mr. Funicelli’s complaint concerning the carpet in the living room. Inspector Dimond testified that this item was listed in Mr. Funicelli’s previous complaint and addressed in the March 7, 2008 CWO, not requiring any action by Anthem. Inspector Dimond also testified that this item of complaint, pertaining to the carpet in the living room, is outside the two year jurisdiction of the ROC. Mr. Funicelli testified that Anthem performed work periodically to the living room carpet from June 2005 through November 10, 2007. Therefore, per Mr. Funicelli’s acknowledgement, Anthem has not performed work to the living room carpet since at least prior to November 10, 2007. The instant complaint was filed on November 17, 2009, more than two years after Anthem performed work on the carpet in the living room. The Administrative Law Judge finds based upon the evidence of record, that Mr. Funicelli’s complaint regarding the carpet in the living room is barred by the statute of limitations because it was filed beyond the two year statutorily required timeframe for filing complaints with the ROC pursuant to A.R.S. § 32-1155(A), which provides for “the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license . . . ” (emphasis added). This section, like any statute of limitation, is a statute enacted as a matter of public policy in Arizona to set a timeframe within which complaints must be filed. Mr. Funicelli filed this complaint on November 17, 2009. Anthem last performed work on the living room carpet prior to November 10, 2007. Because Mr. Funicelli filed this complaint beyond the two year jurisdiction of the ROC, the Administrative Law Judge finds that Mr. Funicelli is precluded from litigating, in this administrative forum, the issues regarding the living room carpet contained in this complaint. At hearing, Mr. Funicelli testified regarding the extensive history between himself and Anthem. Mr. Funicelli expressed his frustration regarding the recurring problems with the carpet, and specified that he does not want Anthem to return to his home to perform additional corrective work. Mr. Funicelli requested reimbursement from Anthem in order that he be able to replace the carpet in the areas designated in the instant complaint. Mr. Funicelli submitted two relevant photographs into evidence that were recently taken on his cell phone. See Exhibit 19, pages 1 and 2. The quality of the photographs was poor and deficiencies were difficult to discern. Id. Mr. Funicelli also submitted into evidence copies of two independent inspection reports dated May 30, 2006 and November 10, 2007, authored by the same inspector. See Exhibits 1 and 2. The Administrative Law Judge gives those reports little evidentiary weight as the inspector was not present to testify about his findings, and further, because Anthem replaced some of the carpet and performed corrective work to other areas of the carpet after those inspections occurred. Mr. Bolduc testified that Anthem has performed corrective work numerous times at Mr. Funicelli’s request and complied with the provisions of the CWOs issued in Case Number 08-1753. Mr. Bolduc further testified that a CWO was not issued with regard to the instant complaint and that Mr. Funicelli has not contacted Anthem since August 2008. Mr. Bolduc credibly testified that Mr. Funicelli would not allow Anthem access to his home to inspect or perform additional repair work with regard to this complaint. As such, Anthem has been unable to determine whether a problem exists, and therefore, cannot determine the appropriate remedy. Mr. Funicelli acknowledged that he would not allow Anthem access to his home after he filed the instant complaint giving rise to this administrative hearing. Mr. Funicelli further acknowledged that Anthem has not abandoned his project as charged by the ROC in the Citation and Complaint. The Administrative Law Judge finds with the regard to the remainder of the complaint items contained in the instant complaint, that the record in this matter failed to establish current deficiencies in Anthem’s work. CONCLUSIONS OF LAW In this proceeding, Mr. Funicelli bears the burden to prove, by a preponderance of the evidence, that Anthem is subject to discipline for violations of A.R.S. § 32-1154(A)(1) and/or (A)(3) as charged by the ROC in its March 8, 2010 Citation and Complaint. See Arizona Administrative Code R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Funicelli failed to meet his burden of proof as to both of the ROC’s two charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The evidence of record, including Mr. Funicelli’s acknowledgment, established that Anthem did not abandon its contract or refuse to perform. Therefore, the Administrative Law Judge concludes that Anthem did not violate A.R.S. § 32- 1154(A)(1). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Anthem with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the evidence of record, that while Anthem may have initially performed some of its work at Mr. Funicelli’s home in a deficient manner, those deficiencies have been rectified by Anthem. Mr. Funicelli failed to establish by probative and substantial evidence that deficiencies currently exist. As such, the Administrative Law Judge concludes that Anthem did not violate A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Anthem’s license. The ROC’s Citation in Case Number 2010-18613029, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Anthem’s Class K-8 license, and that the Citation issued in Case Number 2010- 18613029, together with the Complaint upon which it is based, be dismissed.

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, July 19, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The ROC instructed Mr. Funicelli to file a second complaint due to the length of time that the initial complaint had been closed.

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